Bopst v. Williams
| Decision Date | 06 March 1921 |
| Docket Number | No. 21086.,21086. |
| Citation | 229 S.W. 796,287 Mo. 317 |
| Parties | BOPST v. WILLIAMS et al. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Atchison County; John M. Dawson, Judge.
Action by Samuel J. Bopst, an infant, against Eugene F. Williams and others to set aside a guardian's sale of land and to cancel deeds given therefor. Judgment for the plaintiff, and defendants appeal. Affirmed.
L. D. Ramsay, of Rockport, and H. B. Williams, of Craig, for appellants.
P. C. Simons, of Enid, Okl., and Hunt & Bailey, of Rockport, for respondent.
This is an appeal from a judgment of the Atchison circuit court which holds invalid a guardian's sale of land and cancels certain deeds.
James A. Campbell, who died in 1889, devised his lands to his four children in equal shares, except that he provided the share of Edith P. Campbell should go to her for life and at her death should go to her bodily heirs. In 1900 Edith P. Campbell married one Logan. Respondent was born of this marriage. In 1902 Edith P. Logan, nee Campbell, divorced her husband, and in 1904 married William E. Shenk, in the state of Oklahoma. Respondent is her only child. August 26, 1907, heirs of two of James A. Campbell's devisees began suit to partition the lands he devised. There were numerous defendants, among others, "Edith P. Shenk and W. E. Shenk, her husband, and James Logan [this respondent], a minor." The land was divided in kind, and that involved here cone allotted to Edith P. Shenk, for life, remainder to her bodily' heirs, as provided by the will. December 19, 1907. Edith P. Shenk was appointed guardian of respondent by the county court of Blaine county, Okl. She gave bond in the sum of $8,000, signed by Ed Baker and W. E. Shenk as sureties. In January, 1908, Edith P. Shenk filed in the probate court of Atchison county her application, as foreign guardian, for an order to sell the interest of respondent in the land in suit. She accompanied this with authenticated copies of the record of her Oklahoma appointment and of the bond given in that state. The order of sale was made January 20, 1908. The interest of respondent was appraised at $3,600. February 12, 1908, Edith P. Shenk reported she had sold respondent's interest to William E. Shenk for $3,600 at private sale. The sale was approved and a deed executed and delivered pursuant thereto. May 9, 1908, William E. Shenk and Edith P. Shenk, his wife, conveyed the land in suit to W. A. Williams, who conveyed to appellant E. F. Williams in January, 1909. The latter executed a trust deed to the corporate appellant. In 1913 Edith P. Shenk died. Subsequently William E. Shenk was appointed guardian of respondent by the county court of Oklahoma. There was never any settlement or accounting made to the Oklahoma court by either guardian. The only papers or records are those of about the time Mrs. Shenk was appointed and the subsequent appointment of Shenk to succeed her. An aunt of respondent, Mrs. Bopst, discovered that Shenk was inattentive to the rights of her nephew, whom she thereafter adopted and of whose affairs she took charge. At her instance this suit was begun. Respondent took the name of his adoptive mother.
The petition assails the transfer of the property by the guardian and the subsequent deeds on many grounds. Some of these go to the jurisdiction of the county court of Blaine county, Okl., to appoint Mrs. Shenk guardian of her son, and some to the jurisdiction of the Atchison county probate court to order the sale of the land in suit. The sale is also attacked for fraud on several grounds. Details are subsequently given.
I. Respondent urges that the evidence shows he and his mother did not live in Blaine county, Okl., but in an adjoining county, and that this deprived the county court of Blaine county of jurisdiction to appoint a guardian. Let it be assumed it would be so in that state. Respondent's petition in this case expressly alleges he and his mother were residents of Blaine county. Further the evidence which indicates the contrary was not offered to make this issue. It was incidental. The same witness testified in support of the allegation of the petition. In any event, this particular attack is collateral and cannot succeed. Cox v. Boyce, 152 Mo. loc. cit. 582, 54 S. W. 467, 75 Am. St. Rep. 483; Langley v. Ford (Okl.) 171 Pac. loc. cit. 472, 473.
II. It is urged that, since our statute then in force (section 417, R. S. 1909) did not permit a married woman to be curatrix of the estate of a minor, and since Edith P. Shenk was a married woman, she had no power to act in this state in the proceeding to sell respondent's interest in the land in suit. It is not contended her married state affected her competency under the law of Oklahoma, the state of residence of herself and of respondent. The Missouri statute which authorizes a foreign guardian to proceed to sell in this state property or interests of his nonresident ward does not require that such guardian shall possess the qualifications necessary to appointment in this state as guardian or curator. With respect to that, the sole requisite is that the nonresident minor shall have "a guardian in the state or territory in' which he resides"; and if that condition is met, so far as concerns this present contention, a probate court hi this state is authorized to permit the foreign guardian to sell. Section 411, R. S. 1919.
III. Respondent contends the probate court of Atchison county was without jurisdiction to order the sale because the bond of the guardian, given in Oklahoma, was signed by the guardian's attorney, and there is a statute in that state which, he insists, renders this bond void for the reason it was so signed. The bond was signed by Edith P. Shenk, as principal, and W. E. Shenk, and Ed Baker, as sureties. Baker was a practicing lawyer of Oklahoma and represented Mrs. Shenk in the proceedings for her appointment as guardian in that state. The statute referred to reads as follows:
Without Baker's signature the bond would not have been good for the amount required by section 411, R. S. 1919. The bond in this case does not fall within the statute quoted. It was a guardian's bond. Respondent assumes the bond was given in a "civil action." A "civil action" implies adversary parties and an issue or issues, and is designed for the recovery or vindication of a civil right or the redress of some civil wrong. Berry v. Berry, 147 Ind. 176, 46 N. E. 470; Iowa v. C., B. & Q. R. Co. (C. C.) 37 Fed. loc. cit. 498, 3 L. R. A. 554; In re Battle's Estate, 158 N. C. 388, 74 S. E. 23; Lanning v. Gay, 70 Kan 353, 78 Pac. 810, 85 Pac. 407; Ex parte Bailey, 1 Okl. Cr. loc. cit. 119, 94 Pac. 553; Maben v. Rosser, 24 Okl. loc. cit. 598, 103 Pac. 674; 1 C. J. § 8, p. 930; 1 R. C. L. § 11, p. 325. In many states, e. g., Oklahoma, statutory definitions of like tenor have been adopted:
"An action is an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense." Section 5536, Comp. Laws Okl. 1909.
Sections 5537, 5538, 5539, and 5540 of the same Laws read as follows:
When the actions defined in section 5539 are subtracted from all actions, as defined in section 5536, the remainder defines "civil actions" in a manner ofttimes approved. The Constitution of Oklahoma excludes probate causes from the term "civil action." Welch v. Barnett, 34 Okl. loc. cit. 170, 125 Pac. 472. We do not mean to be understood as taking judicial notice of the statutes of Oklahoma. Those statutes are cited as typical and as, in fact, containing the ordinary definition of a civil action. The act respecting sureties which was offered in evidence clearly shows that "civil actions" exist in the state of Oklahoma. Since the statutes quoted were not offered in evidence, it is necessary to turn to the general definition of the words. That definition makes it clear that the bond involved in this case was not a bond given in a civil action; and, of course, there is no contention it was given in a criminal action. Such statutes are not extended by construction to subjects not within their purview. Halfacre v. State, 112 Tenn. loc. cit. 611, 612, 79 S. W. 132; Lewis v. Higgins, 52 Md. loc. cit. 618. It follows that the statute in evidence does not extend to guardians' bonds.
IV. The petition for the sale of the minor's interest alleged, among other things, that on account of reasons stated in detail, "it would be to the best interest of said minor * * * to sell" his interest in the land in question, transfer the proceeds to Oklahoma, where both guardian and ward resided, further recited that it was shown the proceeds could be invested in Oklahoma...
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