Bopst v. Williams

Decision Date09 April 1921
Citation229 S.W. 796,287 Mo. 317
CourtMissouri Supreme Court

Appeal from Atchison Circuit Court. -- Hon. John M. Dawson, Judge.


L. D Ramsay and H. B. Williams for appellants.

(1) The court erred in finding that the purchaser did not pay for the land at guardian's sale. The guardian's deed recited payment of the purchase money. Our statute makes such deed prima-facie evidence of the recitals therein contained. Kerney v. Vaughan, 50 Mo. 286; Sec. 435, R. S. 1909; Sec. 11927, R. S. 1909; Exendine v. Morris, 8 Mo.App. 383. There is no evidence or circumstance that contradicts the prima-facie case above mentioned. (2) Our statute is: "nor shall the guardian or curator become the purchaser, either directly or indirectly, of any of the property of his ward sold." In Burton v Compton, 150 P. 1080, the Oklahoma court held guardian's deed made to his wife absolutely, void, on the ground that he would, at her death, inherit one-half of her property and, therefore he was interested in the sale. The court cited the Kansas case of Frazier v. Jenkins, 57 L. R. A. 575. This case in Kansas also held such a deed absolutely void, and both cases decided that because the deed was void rather than merely voidable, it could be attacked in a collateral proceeding. Both the Oklahoma case and the Kansas case above cited, cite as authority for the decision Tyler v. Sanborn, 128 Ill. 136, and Davore v Fanning, 2 Johns. Ch. 252. In both these cases cited, the deeds under similar circumstances were held to be voidable only and not absolutely void, and in the Fanning case the purchase money was ordered refunded as a condition precedent to setting the deed aside. Our case must be tried by the law of Missouri. Whatever be the law of Kansas and in Oklahoma, in this State, the order approving the sale by the probate court is a final judgment of the probate court, is in the category of res judicata, and cannot be reached by collateral attack. Covington v. Chamblin, 156 Mo. 587. It is well settled law of this State that final judgments of the probate court in matters within their jurisdiction, are as conclusive as those of courts of general jurisdiction. Camden v. Plain, 91 Mo. 117; Rowden v. Brown, 91 Mo. 429; Price v. Springfield R. E. Assn., 101 Mo. 107; Sherwood v. Baker, 105 Mo. 472; Macey v. Stark, 116 Mo. 481; Rogers v. Johnson, 125 Mo. 202; Cox v. Boyce, 152 Mo. 576. As late as 1876, an administrator was permitted to buy at his own sale in Missouri. Grayson v. Weddle, 63 Mo. 539; Strauss v. Ranheim, 59 N.Y.S. 1054; Crawford v. Gray, 30 N.E. 885; Epperson v. Postal Tel. Co., 155 Mo. 346; Hoffman v. McCracken, 168 Mo. 343. (3) In the petition we are not charged with notice that the court in Oklahoma had no authority to appoint, or that the law of that state forbade an attorney signing the bond, or that an attorney did sign the bond, nor that the purchaser was husband of the guardian, nor that he failed to pay the purchase money to the guardian, and were not charged with notice of consequent damages to plaintiff. Without such notice, this defendant is an innocent purchaser. Shelton v. Franklin, 224 Mo. 363. The evidence in the case cannot supply lack of necessary allegations in the petition. Shelton v. Horrell, 232 Mo. 358, 371; Dorrance v. Dorrance, 242 Mo. 668. (4) This very matter was presented to the probate court by plaintiff's mother, plaintiff's guardian, plaintiff's representative, and the probate court considered and passed on it. Donnell v. Wright, 147 Mo. 647. (5) To vitiate a judgment because fraudulent, the fraud must be actual as contradistinguished from a judgment obtained on false evidence, or a forged instrument on the trial. Nichols v. Stevens, 123 Mo. 116; Dorman v. Hall, 124 Mo.App. 9; Leiber v. Leiber, 239 Mo. 34; McDonald v. McDaniel, 242 Mo. 176; Cross v. Gould, 131 Mo.App. 602; Hamilton v. McLean, 169 Mo. 70; Pelz v. Bollinger, 180 Mo. 258; Covington v. Chamblin, 156 Mo. 587. (6) "To allow the heirs or anyone else, in a collateral proceeding, to question the correctness of the judgment of the court, would so imperil the titles conveyed at administrators' sales of lands that no prudent man would bid their value." Courts do not favor it because against public policy and the weight of authority. Carr v. Spanagel, 4 Mo.App. 284; Pearson v. Murray, 230 Mo. 167; McClanahan v. West, 100 Mo. 324; Jopling v. Walton, 138 Mo. 485. (7) The Probate Court of Atchison County had general, original and exclusive jurisdiction of the parties and the subject-matter. The guardian made application to sell, under Section 441, and introduced her evidence as required by that section, that the court might examine it and judicially determine therefrom whether to exercise his jurisdiction. It passed on that very question. It is res judicata, not subject to a collateral attack. Johnson v. Beazley, 65 Mo. 250; Sims v. Gray, 66 Mo. 616; Scott v. Crews, 72 Mo. 261; Camden v. Plain, 91 Mo. 129; Rowden v. Brown, 91 Mo. 429; Brawford v. Wolfe, 103 Mo. 395; Williams v. Mitchell, 112 Mo. 308; Rogers v. Johnson, 125 Mo. 213; McKinzie v. Donnell, 151 Mo. 450; Cox v. Boyce, 152 Mo. 582; Desloge v. Tucker, 196 Mo. 601; In re Estate of Jarboe v. Jarboe, 227 Mo. 99; Pearson v. Murray, 230 Mo. 167; Dorrance v. Dorrance, 242 Mo. 662. (8) It is urged below by plaintiff that guardian sold ward's land to her husband, and for that reason the sale was void. The authorities relied on by plaintiff to sustain that contention, held that a guardian may sell the ward's land to husband or wife of guardian, provided the guardian procures an order from the court authorizing such sale, prior to selling. The courts of this State have held time and again that an administrator is regarded as the officer or agent of the court in making the sale, and that sales of real estate under order of the probate court are judicial sales, and the confirmation of such sales by the probate court is the crowning act and covers all prior irregularities, provided, of course, that the court had obtained jurisdiction of the subject-matter and over the parties. It follows that, if the court, with knowledge of the facts, may make such order prior to the sale, it can, when such facts are conveyed by the report of the sale made by guardian, the court's agent, ratify the same by an approval of the sale. Blickensderffer v. Hanna, 231 Mo. 110; Noland v. Barrett, 122 Mo. 188. So that if the court knew the husband purchased and approved the sale, it is good, and if he did not know it, and approved the sale, it is good.

P. C. Simons and Hunt & Bailey for respondents.

(1) The jurisdiction of probate courts is regulated by statute, and they are courts of limited jurisdiction; there is no statute authorizing them to exercise equitable jurisdiction. Jenkins v. Marrow, 131 Mo.App. 288. (a) They have no common law or equity powers. They are purely creatures of the statute, and where there is no statute giving them power to act and they do not act within their implied powers, such act is without jurisdiction and coram non judice. They possess only such powers as are conferred on them by statute. St Louis v. Hullsat, 175 Mo. 79; Ford v. Talmage, 36 Mo.App. 65; Bradley v. Woener, 46 Mo.App. 371; Nicholas v. Rayburn, 55 Mo.App. 1. (b) Inferior tribunals, not proceeding according to the course of common law, are confined to the authority given them by statute, and the grounds of their jurisdiction must affirmatively appear on the face of the proceedings. State v. Metzger, 26 Mo. 66; Sawyer v. Burris, 141 Mo.App. 112; State ex rel. v. Johnson, 138 Mo.App. 306. (2) A purchaser at a judicial sale purchases at his peril. The maxim, caveat emptor, applies to all such sales. And a sale by an administrator, executor or curator under the order of the probate court is a judicial sale. Talley v. Schlatitz, 180 Mo. 238; Froley v. Bulware, 86 Mo.App. 674; Hewett v. Weatherby, 57 Mo. 276; Mann v. Best, 62 Mo. 491; Throckmorton v. Penby, 121 Mo. 50. (3) Every instrument filed in the office of the recorder, for record, shall, from the time of filing same, impart notice to all subsequent purchasers, and, if they fail to discover the defect in the title to the land, they are without remedy. R. S. 1909, sec. 2810; Miller v. Whitson, 40 Mo. 97; Crane v. Dameron, 98 Mo. 567; Weir v. Cordez, 186 Mo. 388; Williams v. Butterfield, 214 Mo. 412. When the conditions which the law declares shall constitute constructive notice are shown to exist, the presumption of such notice is conclusive, and no evidence will be permitted to overthrow or impair it. Prewitt v. Prewitt, 188 Mo. 675. One who has notice of a fact which ought to have put him on inquiry and which he might have discovered by using due diligence, cannot claim to be a purchaser without notice. Siches v. Bombousek, 193 Mo. 113; Scott v. Gordon, 109 Mo.App. 695; McAdo v. Wright, 128 Mo.App. 358. (4) The administration laws and the laws governing curators or guardians (of late years the first term having been embraced in the latter, to much confusion) are in pari materia, and must be construed together. Laney v. Browning, 112 Mo.App. 195. The title to the land was in the respondent, and not in his guardian, Edith P. Shenk. Zellers v. Surety Co., 210 Mo. 86; Silierst v. McNally, 223 Mo. 505. (5) If the court had no jurisdiction of the subject-matter, or the person, or if the court exceeded its powers or acted outside of its implied powers, it being an inferior court not proceeding according to the course of the common law, in either event, the judgment may be attacked collaterally, for a judgment so rendered is void, a nullity. Freeman on Judgments (3 Ed.), p. 112, secs. 117, 120. Stark v. Kirchgraber, ...

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