Bodine v. Farr

• Decision Date: 03 July 1944
• Docket Number: 38955
• Citation: 182 S.W.2d 173,353 Mo. 206
• Parties: Jennie Farr Bodine (Insane), by Minnie L. Gordon, Public Administrator and Ex Officio Public Guardian, Her Guardian, Plaintiff-Appellant, v. Sam Farr and Glenn L. Cunningham and John Sanford, Defendants-Appellants
• Court: Missouri Supreme Court

182 S.W.2d 173

353 Mo. 206

Jennie Farr Bodine (Insane), by Minnie L. Gordon, Public Administrator and Ex Officio Public Guardian, Her Guardian, Plaintiff-Appellant, v. Sam Farr and Glenn L. Cunningham and John Sanford, Defendants-Appellants

No. 38955

Supreme Court of Missouri

July 3, 1944

Rehearing Denied September 5, 1944.

Appeal from Buchanan Circuit Court; Hon. Emmett J. Crouse Judge.

Reversed and remanded (with directions).

S P. Reynolds, for appellant Jennie Farr Bodine.

(1) The Revised Statutes of Missouri authorize the sale of property of the ward for her support and maintenance when the personal estate shall be insufficient for payment of debts and maintenance of herself and family, then and in that case the probate court may make an order of sale for that purpose. In the present case, the petition prays for an order of sale because the income from the real estate is insufficient instead of the personal estate. This did not give jurisdiction to the probate court to proceed and it had no jurisdiction to make an order of sale and such order is absolutely void and not binding on this plaintiff. R.S. 1939, sec. 475. (2) The statement of the financial condition of the ward's estate did not cover the entire estate and for that reason it was void, and for that reason, the trial court should have sustained plaintiff's motion for new trial. R.S. 1939, sec. 476. (3) The trial court erred in putting a charge on plaintiff's land in favor of defendant Cunningham because the court further in its decree finds that all of the defendants were guilty of fraud upon plaintiff in getting plaintiff's property from her, while she was insane and now and at all times was insane and she should be restored in full to her property and the defendants left where the court finds them as to her. The plaintiff, an insane ward, has and had no say in the control of her property and the statutory trustee cannot put a charge on her property by any act and the statutory trustee cannot put a charge on her property by any act he does, and if Cunningham, defendant, has been badly used it was the company he chose and not the plaintiff that caused it. Kitchen v. Greenabaum, 61 Mo. 110; Story's Equity (14 Ed.), sec. 302, p. 302. (4) The trial court erred in its accounting because it did not take into consideration $ 82.41, which plaintiff says he did not account for, and the rent for 1943, and the $ 125, which defendant Farr says was borrowed money, and which he had no right to borrow, and which the probate court record shows that he had no right to borrow, and it failed to take into consideration the amounts expended by said Farr in procuring this order of sale which he paid to his attorneys and himself, and his paying $ 70 for an abstract of this property given to defendant Cunningham, and the probate court costs all unnecessarily made. Under the law, it was the duty of the trial court to consider all of these items. Sec. 2100, R.S. 1939. (5) According to the decree of the trial court, the defendants being coadjutors and conspirators in obtaining the property of plaintiff, who could not and cannot take care of herself, obtained her property by fraud, as found by the court, when she was not and could not have anything to say, and their rights the court should let them settle between themselves as between them without expense to plaintiff when they should have been left as the court found them in their fraud. Such action was not according to equity and justice. Kitchen v. Greenabaum, 61 Mo. 110; Story's Equity (14 Ed.), sec. 302, p. 302. The law authorizing the appointment of a statutory trustee provides that before he takes charge of such estate property he must have witnesses and appraisers. This was not done in this case. Secs. 462, 464, 465, R.S. 1939. Neither the petition or the statement of the financial condition complied with the law and all the actions thereafter under said petition were void and cannot and do not affect the rights of plaintiff in her property. Secs. 475-6, R.S. 1939. When the property is taken from the insane it is in the custody of the law to be directed by proper authority, and this authority cannot charge the property of the insane person unless there is the strictest following of the law in all respects. Grove v. Reynolds, 100 Mo.App. 56, 71 S.W. 1103.

Maurice Pope for appellants Glenn L. Cunningham and John Sanford.

(1) Probate courts have jurisdiction over the appointment of guardians of persons of unsound mind; settling the accounts of such guardians; and the sale of lands by guardians. Mo. Const., Art. 6, Sec. 34. (2) Judgments and orders of probate courts in the exercise of probate jurisdiction are entitled to the same favorable presumption and intendments that are accorded to orders and judgments of the circuit courts. Murphy v. DeFrance, 105 Mo. 53. (3) Where a sale is ordered and confirmed by a court having jurisdiction thereof, it cannot be collaterally attacked for any defects or irregularities in the proceedings to obtain the order or for any defects in the order itself or the proceedings subsequent to the order; and, within this rule, jurisdiction will be presumed where the record does not show a want of it. 28 C.J., p. 1200, sec. 350; Cox v. Boyce, 152 Mo. 576. (4) A court of equity will not set aside an order of a probate court approving an administration sale, unless there was fraud in procuring it; a wrongful approval is not sufficient, as it could have been appealed from. Murphy v. DeFrance, 105 Mo. 53. (5) A person dealing with a curator must ascertain authority, but authority may be relied upon when the probate court has duly authorized the curator to act. It is not necessary to go behind the finding and order of the probate court to ascertain if the order of the court was based upon sufficient facts. Phillips v. Phoenix Trust Co., 58 S.W.2d 318. (6) Real property sold by a guardian at private sale need not bring three-fourths of its reasonable market value. It need sell for only three-fourths of its appraised value. R.S. 1939, sec. 406. (7) Mere inadequacy of consideration is not enough to warrant the setting aside of a judicial sale unless the inadequacy is such that in itself it raises the presumption of fraud. Rorer on Judicial Sales (2 Ed.), sec. 549, p. 233. (8) If the court had jurisdiction to order the sale, and the proceedings were regular on their face, one who purchases the property in good faith, for a valuable consideration, without knowledge of any defect which would make the sale voidable, will be protected in his title, and will not be ousted because of fraud of the guardian inducing the sale where the purchaser did not participate in or have knowledge of such fraud. 28 C.J., p. 1201, sec. 351. (9) The cancellation of a deed is an exertion of the most extraordinary power of a court of equity, which ought not to be exercised except in a clear case, and upon strong and convincing evidence. Dreckshage v. Dreckshage, 176 S.W.2d 7. (10) Fraud is never to be presumed, but proof thereof must be positive and definite and a transaction will be held honest if facts proven consist as well with honesty as with fraud. Langley v. Imperial Coal Co., 138 S.W.2d 696.

Groves & Watkins, Fred M. Wanger and O. W. Watkins, Jr., for appellant Sam Farr.

(1) The probate court has exclusive jurisdiction over all matters pertaining to probate business, the appointment of guardians and curators of persons of unsound mind, and the settling of their accounts and the sale of lands by guardians and curators. Mo. Const., Art. 6, Sec. 34; Scott v Royston, 223 Mo. 568, 123 S.W. 454. (2) A court of equity will act only when there is no adequate remedy at law. 30 C.J.S., sec. 20, p. 338; Strong v. Crancer, 76 S.W.2d 383. (3) The objection to the introduction of any evidence should have been sustained, because the petition does not state a cause of action and is meaningless. State ex rel. Hendrix v. American Surety Co. of New York, 176 S.W.2d 67. (4) In an equity case the Supreme Court will review the entire record and if the findings of the trial court are not supported by the evidence, this court will reverse the decision of the trial court. Dreckshage v. Dreckshage, 176 S.W.2d 8; Jones v. Peterson, 72 S.W.2d 76. (5) This being a collateral attack upon the judgment of the probate court, it is necessary for plaintiff to show from the face of the records of the probate court that that court was without jurisdiction or that the judgment was obtained through fraud. Jones v. Peterson, 72 S.W.2d 76; Hedrick v. Hedrick, 168 S.W.2d 69. (6) Fraud is defined as deceit, deception or trick, and is never presumed, but the proof must be positive, and where the facts consist as well with honesty as with fraud, the transaction will be held honest. Webster's Universal Unabridged Dictionary, World Publishing Company Edition; Langley v. Imperial Coal Co., 138 S.W.2d 696; Stubblefield v. Husband, 106 S.W.2d 419; Ransberger v. McLennon, 252 S.W. 49; Feil v. Wells, 282 S.W. 25; Farmers & Merchants Bank v. Funk, 92 S.W.2d 587. (7) There is a presumption of proper acting by the probate court, and that a guardian has accounted for all of his ward's property where final settlement has been made. Jones v. Peterson, 72 S.W.2d 76; Smith v. Denny, 34 Mo. 219; Ansley v. Richardson, 95 Mo.App. 332; State ex rel. Hendrix v. American Surety Co., 176 S.W.2d 67. (8) Where there is no evidence to overcome prima facie correctness of an item claimed as a credit by a guardian, it should be allowed. State ex rel. Tygard v. Elliott, 82 Mo.App. 458; Myers v. Myers, 98 Mo. 262, 11 S.W. 617. (9) Inadequacy of price alone does not constitute fraud, unless it is so gross as to shock the conscience. Judah v. Pitts, 62 S.W.2d 715; Phoenix Trust Co. v. Holt, 312 Mo. 563, 279 S.W....