Ancell v. Southern Illinois & M. Bridge Co.

• Decision Date: 29 June 1909
• Citation: 223 Mo. 209,122 S.W. 709
• Parties: ANCELL et al. v. SOUTHERN ILLINOIS & M. BRIDGE CO. et al.
• Court: Missouri Supreme Court

122 S.W. 709

223 Mo. 209

ANCELL et al. v. SOUTHERN ILLINOIS & M. BRIDGE CO. et al.

Supreme Court of Missouri, Division No. 2.

June 29, 1909.

Rehearing Denied July 13, 1909.

Motion to Transfer to Banc Denied November 23, 1909.

1. GUARDIAN AND WARD (§ 79) — PROPERTY OF WARD — SALE OF "REAL ESTATE."

The homestead right of minors in land of their deceased father is "real estate" within Rev. St. 1899, § 3504 (Ann. St. 1906, p. 2000), permitting the probate court to order the sale of a minor's real estate when the personal estate is insufficient for his maintenance, etc., and section 3510 (Ann. St. 1906, p. 2002), permitting the court to order a sale of a ward's real estate when it would be for his benefit; the homestead being an estate in land.

2. EMINENT DOMAIN (§ 49) — PROPERTY TAKEN — HOMESTEAD RIGHT OF MINORS.

The homestead right of a minor in land can be taken by eminent domain.

3. GUARDIAN AND WARD (§ 87) — SALE OF WARD'S LAND — NOTICE OF SALE — NECESSITY.

No notice of the guardian's application to sell a minor's real estate for his maintenance and education need be given to the minor under Rev. St. 1899, § 3505 (Ann. St. 1906, p. 2000), providing that sales of a minor's real estate shall be made by the same proceedings as in cases of the sale of a decedent's realty for debts, except that there shall be no publication to parties in interest before making the order of sale.

4. GUARDIAN AND WARD (§ 84) — GUARDIAN AD LITEM — SALE OF WARD'S LAND — PRESUMPTIONS.

There is no presumption of law that a guardian is so interested personally in a proceeding to sell the ward's real estate that a guardian ad litem should be appointed to represent the minor; every presumption being indulged that the guardian will protect the ward's interest until the contrary is shown.

5. GUARDIAN AND WARD (§ 88) — SALE OF WARD'S LAND — TIME OF SALE.

That the order of sale of a minor's land was made the same day the petition therefor was filed by the guardian, and not at the next term of court, was at most an irregularity, which did not go to the jurisdiction of the probate court to order the sale and did not invalidate it; Rev. St. 1899, § 148 (Ann. St. 1906, p. 386), providing that, when the petition for the sale of a decedent's land for debts is filed, the court shall order a sale unless it be shown on the first day of the next term of court that the sale is not necessary, applying to administrator's sales, and not to a guardian's sale, notwithstanding section 3505 (Ann. St. 1906, p. 2000), providing that the sale of a minor's real estate shall be made by the same proceedings as in cases of the sale of a decedent's realty for debts, except that there shall be no publication to parties in interest before making the order, that section not requiring notice to the ward of the obligation to sell.

6. GUARDIAN AND WARD (§ 105) — SALE OF WARD'S LAND — QUESTIONS REVIEWABLE — SETTING ASIDE SALE.

Since the probate court had jurisdiction of the sale of a ward's real estate for his maintenance, etc., the question of the sufficiency of the guardian's petition for the sale was for it to determine, and its action in approving the petition cannot be reviewed in absence of fraud, so that the question of the invalidity of a sale because the guardian's petition was not sworn to will not be reviewed.

7. GUARDIAN AND WARD (§ 105) — SALE OF WARD'S LAND — PROCEEDINGS TO VACATE SALE — GROUNDS — PROOF OF APPRAISEMENT.

A sale of a ward's land will not be declared invalid because the appraisers, who the guardian's certificate of appraisement showed had appraised the land, could not remember years afterward, upon testifying in proceedings to set aside the sale, of having appraised the land.

8. APPEAL AND ERROR (§ 1012) — FINDINGS — CONCLUSIONS — EQUITY CASES.

While the Supreme Court can weigh the evidence in equity cases, where the evidence is mostly oral, it will defer largely to the judgment of the trial court upon questions of the weight and credibility of the testimony; it having a better opportunity to determine those questions, and its findings will not be disturbed in absence of a showing of abuse of discretion.

9. CORPORATIONS (§ 388) — ULTRA VIRES ACTS — PURCHASE OF LAND — ESTOPPEL TO ASSERT.

If a sale of minors' land to a corporation upon petition by the guardian was otherwise valid, and the minors have received the consideration of the sale, they cannot assert want of power in the corporation to take and hold the land as a ground for vacating the sale.

Appeal from Circuit Court, Scott County; Henry C. Riley, Judge.

Action by Alonzo W. Ancell and others against the Southern Illinois & Missouri Bridge Company and others. From a judgment dismissing the petition, plaintiffs appeal. Affirmed.

R. G. Ranney and Jno. A. Hope, for appellants. W. H. Miller, for respondents.

GANTT, P. J.

This is a suit by Alonzo W., Florence A., and Thornton A. Ancell, the latter a minor child of Thornton Ancell, deceased, by his guardian and curator, Thomas M. Williams, to set aside a certain deed made by their former guardian, Samuel Tanner, to 9.1 acres of land particularly described as follows: "Beginning at a point 1,030 feet west of the northeast corner of section 4 at the intersection of the south right of way line of the Gray's Point Terminal Railway and the west line of the public road lying in the N. E. ¼ of section 4, township 29, range 14 east, and extending in southwesterly along said right of way line, 1,280 feet, more or less; thence south, 310 feet; thence northeasterly parallel to said right of way line, 1,280 feet, to said public road; thence north, along said road, to the point of beginning, containing 9.1 acres, more or less, in Scott county, to the Southern Illinois & Missouri Bridge Company" — and also to set aside all the proceedings in the probate court of said county in relation to the sale of said real estate to the said bridge company, and to divest the said bridge company of all right and interest and title in said real estate and vest the same in plaintiffs.

The petition states the minority of the plaintiff Thornton Ancell and the appointment of Mr. Williams as his guardian and curator in May, 1903, by the probate court of Cape Girardeau county. It is then alleged that Thornton A. Ancell left surviving him at his death his widow, Margaret J. Ancell, and the three minor plaintiffs, as his only heirs at law; that the widow elected in the manner provided by law to be endowed absolutely of a share of the real estate in lieu of her dower therein, and afterwards conveyed her one-fourth share of the real estate above described to the said bridge company. It is then alleged that the plaintiffs were entitled to a homestead in the 40-acre tract of which said 9.1-acre tract is a part during their minority, and, in addition thereto, they were each entitled to one undivided one-fourth thereof in fee simple. It is then alleged that on the ____ day of November, 1897, the defendant Samuel Tanner at the request and instigation of the Gray's Point Terminal Railway Company, which desired to obtain a right of way through said land for its railroad, induced the probate court of Scott county to appoint him, the said Tanner, guardian and curator of the estate of these minors, and that thereafter said Tanner, by means of fraudulent representations, obtained from the said probate court a fraudulent and pretended order of sale, in pursuance of which he pretended to sell and convey ____ acres of said real estate to said Gray's Point Terminal Railroad Company for its said right of way, and thenceforth, until these plaintiffs selected Thomas M. Williams as their guardian and curator, said Tanner was constantly scheming and contriving with the Southern Illinois & Missouri Bridge Company and with the railroad companies that own and are interested in said bridge company to cheat and defraud plaintiffs out of their said real estate and vest the title of the same for a nominal consideration; that, in pursuance of said fraudulent scheme, said Samuel Tanner on May 26, 1902, at the May term thereof, filed in the probate court of Scott county a pretended petition for an order to sell 9.1 acres of said real estate as above herein described, and falsely represented to said court that there was no personal estate belonging to plaintiffs; that the rents and profits of said lands were insufficient to pay the charges and expenses necessary to support and educate them, and that it would be to the interest of plaintiffs to sell said real estate and reinvest the proceeds at interest; that on said May 26, 1902, said probate court made and entered its order directing said Samuel Tanner to sell said real estate at private sale for cash, and thereafter said Samuel Tanner, in pursuance of said pretended petition and order of sale, sold said real estate to the defendant for the sum of $500.50, and reported said sale to the said probate court on the 25th day of August, 1902, and wrongfully and fraudulently induced said court to approve said sale, in pursuance of which said order and approval said Samuel Tanner, acting as guardian and curator of plaintiffs, executed and delivered to defendant a deed, whereby he undertook to convey said real estate to defendant, which deed the defendant bridge company caused to be recorded on September 20, 1902, in book 45, pp. 336, 337, in the office of the recorder of deeds in Scott county. It is then alleged in general terms that the allegations in the petition for the sale of said lands were false and fraudulent, and that plaintiffs were not in need of any funds for support and maintenance or education, and that there was no occasion for selling the same at that time; that at that time said land was a most advantageous and profitable investment of plaintiffs' estate, and the said 9.1 acres was then and still is of the value of $10,000. Various irregularities are then alleged as to the proceedings in the probate court, and a general...