Ancell v. Southern Illinois & Missouri Bridge Co.
| Decision Date | 23 November 1909 |
| Citation | 122 S.W. 709,223 Mo. 209 |
| Parties | ALONZO W. ANCELL et al., Appellants, v. SOUTHERN ILLINOIS & MISSOURI BRIDGE COMPANY et al |
| Court | Missouri Supreme Court |
Appeal from Scott Circuit Court. -- Hon. Henry C. Riley, Judge.
Affirmed.
R. G Ranney and John A. Hope for appellants.
(1) The proceedings in the probate court, resulting in the guardian's sale and deed to defendant bridge company, are void, for the reason that the plaintiffs had a homestead in the land. This involves a construction of certain provisions of chapter 34, R. S. 1899, entitled "Guardians and Curators," in connection with chapter 37, entitled "Homesteads." The statutes are in pari materia and should be construed together. Sales v. Paving Co., 166 Mo. 671. The sale involved in this suit was under the provisions of sections 3504 and 3511, R. S. 1899, authorizing the probate court to order "the lease or sale of the real estate" of minors for certain objects or purposes therein mentioned. What is a homestead? Is it an exemption privilege, or is it an estate in land? In many jurisdictions it is held not to be real estate. Snodgrass v Copple, 203 Mo. 480. It necessarily follows from the doctrine above stated that the plaintiffs' homestead was not within the term real estate as used in sections 3504 and 3511, supra, and that the probate court was without authority to order the sale of the nine acres, which was a part of that homestead, and that the sale to the bridge company was void. (2) But even if a homestead be held to be an estate in land the power of probate courts to order the sale of land in which minors have a homestead is considered by the authorities to be at least a very doubtful question. We believe this court has never passed on this question except as it is settled by the application of the doctrine announced in Snodgrass v. Copple, supra, to section 3504, supra. Some high authorities are certainly against the exercise of the power. Thompson on Homestead, sec. 551, pp. 466-67 (Ed. 1878); White v. Samuels, 54 Ga. 548; Roberts v. Trammell, 55 Ga. 383; Woerner's Am. Law Guardianship (1897), par. 3, pp. 250, 251; 56 L. R. A. 89. (3) Further reasons in support of our contention that sections 3504 and 3511 should not be construed as empowering probate courts to order the sale of land covered by the homestead rights of minors are as follows: (a) A strict construction of the statute excludes homestead rights from being included in the power of sale vested by that statute in the probate court; and the statute should be given a strict construction, because it is in derogation of the well-known rule of the common law that the nature of the minor's property must not be changed, either by a guardian out of court, or by the court itself, so as to convert real property into personal or personal property into real. McPherson on Infants, 278; Elwood v. Northrop, 106 N.Y. 172; Woerner's American Law Guardianship, sec. 70, p. 233 (Ed. 1897); Strouse v. Drennan, 41 Mo. 289. (b) The homestead statute in force on September 12, 1888, when plaintiffs' father died, provided that "his homestead to the value aforesaid shall pass to and vest in his widow and children, and shall continue for their benefit . . . until the youngest child shall attain its majority," and there is a further clause excepting the homestead thus continued from the provisions of the law relating to devise, descent, dower, partition and sale for the payment of debts. R. S. 1889, sec. 5439; Roberts v. Trammell, 55 Ga. 383. (c) The statute relating to sales of real estate by guardians (sections 3504 and 3511) is general; it refers to real estate generally. But the homestead statute deals with a particular subject -- the homestead rights of a widow and children in a decedent's land. The universal rule of statutory construction is that when a particular statute deals with a subject of limited character and states a special rule it prevails over more general language of a different import in another statute. Roth v. Gabbert, 123 Mo. 21; State v. Clark, 54 Mo. 35. (d) Such an interpretation of the law gives effect to the purpose of homestead legislation, viz., to conserve family homes, to preserve families, and thereby promote the welfare of society and the State. Wapple's Homestead (1893), sec. 2, p. 3 and sec. 1, ch. 21, pp. 643, 644; Thompson on Homesteads (1878), sec. 1, ch. 1, pp. 1, 3, and sec. 569, p. 475. (e) The homestead statute is beneficial in its operation and is founded in a wise policy and should be liberally construed so as to give full effect to the intention of the Legislature. Vogler v. Montgomery, 54 Mo. 577 and 583; Thompson on Homesteads (1878), sec. 4, p. 5; Mills v. Grant, 36 Vt. 271. (f) According to the settled law in this State, as we understand it, the land in question could not have been partitioned between the widow and children of the deceased parent. Even the fee was not subject to partition during the existence of the homestead of the minors. Did the Legislature intend by section 3504 to absolutely nullify the provision of the homestead law continuing the homestead during the minority of the children? Did it intend to change the established policy relative to such homesteads? Roher v. Brockhage, 13 Mo.App. 397; Nicholas v. Purcell, 21 Iowa 265; Thompson on Homesteads (1878), sec. 452, p. 394. (g) There is abundant authority on the proposition that a homestead and the fee are not alienable separately from each other. Thompson on Homesteads (1878), sec. 452, p. 394, sec. 551, pp. 466, 467; Roher v. Brockhage, 13 Mo.App. 406; White v. Samuels, 54 Ga. 548; Roberts v. Trammell, 55 Ga. 383. (2) The guardian's sale and deed should be set aside on account of numerous irregularities, both void and voidable, in the sale and proceedings that led up to it. 1. No notice of the guardian's application to the probate court to sell the land was given to or served on the plaintiffs, or either of them, although they, with their mother, resided in Scott county at that time. R. S. 1899, secs. 148, 3505. The sale in this case should not be tested by the ruling in the Pattee case, construing the law of 1855, but it should be tested by the law as found in Revised Statutes 1889, the law in force at the time of this sale, which expressly required the same proceedings as in the case of administration sales, with only one exception, viz., the newspaper publication. The Legislature did not except the provision for personal service on the heirs, and the court should apply the law as the Legislature left it. R. S. 1889, sec. 3505; R. S. 1889, secs. 148 and 149; Valle v. Fleming, 19 Mo. 454; Young v. Downey, 145 Mo. 250; McAllester v. Moye, 30 Miss. 258. 2. The order of sale was made on the same day the guardian filed his petition for the order. According to the administration law, the order directing an administrator to sell lands to pay debts cannot be made at the same term of court at which the petition is filed; the order cannot be made earlier than the next term after the filing of the petition. The petition was not even verified. Whether the failure to swear to the petition be regarded as a void or merely voidable irregularity, the fact that the court ordered the sale on the same day the petition was filed renders the sale void. R. S. 1899, secs. 3505 and 148; Hutchison v. Shelley, 133 Mo. 412. (3) This is a suit in equity for the direct purpose of cancelling the guardian's deed to the bridge company and the proceedings in the probate court leading up to the deed. It is not a collateral attack. Being a direct attack in equity, irregularities in the proceedings, even though these irregularities be what are termed merely voidable, and whether they appear on the face of the record of the proceedings or by testimony outside of and contradicting the record, can be taken advantage of and will overthrow the sale. 1 Black on Judgments, sec. 288, p. 560; Davison v. Huff, 165 Mo. 561; Robbins v. Boulware, 190 Mo. 33.
W. H. Miller for respondents.
If there was a single scintilla of proof which could be developed into an indication of fraud or conspiracy to rob these children, neither the trial court nor counsel for either side have been able to discover it. (2) The law does not contemplate nor does the statute ever require the doing of a useless or absurd act. Minors can only appear in court through their guardian or curator, and the service of a notice on them could serve no useful purpose, no good could come of it, no reason exists as to why it should be done, and if the statute did require it the failure to do so would be but an irregularity and would not render the proceedings void. Pattee v. Thomas, 58 Mo. 163. This case has never been criticised or overruled; it could not be, on principle. Publication is no longer required by the statute. R. S. 1899, sec. 3505. (3) The petition for the sale of the nine acres was filed by the guardian on May 26, 1902, the order of sale was made on the same day, the appointment of appraisers was made on the same day, and at the August term came the reported sale and the order for the execution of the deed. This report of sale was accompanied by the certificate of the appraisers. The purchase from the mother, about which so much is said, was consummated on the 29th of July. There is nothing in the record as thus depicted which, in the most remote degree, tends to prove or even suggest wrong-doing. The proceedings were entirely regular. The only possible complaint would be a technical one and, at its worst, a slight irregularity in that the petition was filed and the order made at the same term. Henry v. McKerlee, 78 Mo. 416. When the probate court has jurisdiction of a subject-matter, its records and judgments are entitled to all the considerations that are due to...
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