Carr v. Spannagel

• Decision Date: 26 June 1877
• Citation: 4 Mo.App. 284
• Parties: WILLIAM C. CARR ET AL., Respondents, v. G. R. SPANNAGEL, Appellant.
• Court: Missouri Court of Appeals

4 Mo.App. 284

WILLIAM C. CARR ET AL., Respondents,

v.G. R. SPANNAGEL, Appellant.

St. Louis Court of Appeals, Missouri.

Jun. 26, 1877.

1. A female guardian applied to the Probate Court for an order of sale of the realty of the minors; the proceedings were regular and in strict compliance with the law, and the sale was made in the name of the guardian as an unmarried woman, and confirmed; after confirmation of the sale, her marriage was suggested and a successor duly appointed, who, as guardian, in due form executed a deed to the purchaser. Held, that, in a collateral proceeding attacking the sale, it was incompetent to show that the guardian was married prior to the order confirming the sale.

2. The marriage of a female guardian operates as a revocation of her appointment as such, without any order of the Probate Court.

3. Where the record shows that jurisdiction had attached, and that the proceedings were in strict compliance with the essential provisions of the law, the validity of a judgment of the Probate Court will not be enquired into in a collateral proceeding.

4. Where a sale of real estate is made by a female guardian, under an order of court, the execution of the deed is a purely ministerial act, and may be performed by her during coverture, or by her successor, as guardian, after her coverture is known to the purchaser.

APPEAL from St. Louis Circuit Court.

Reversed, and judgment rendered.

R. SCHULENBURG, for appellant: There must be an order of court revoking the appointment of a female guardian; though she marry after her appointment, this will not of itself work a revocation.--1 Williams on Ex. 488, 449; Post v. Coult, 3 Mo. 36. The judgment of the Probate Court could not be attacked collaterally.-- Graignon v. Astor, 2 How. 319; Voorhies v. Bank, 10 Pet. 449; Philadelphia, etc., R. Co. v. Stimpson, 14 Pet. 448; Cocke v. Halsey, 16 Pet. 87.

IRWIN Z. SMITH, for respondents.

BAKEWELL, J., delivered the opinion of the court.

This is an action of ejectment, brought by the plaintiffs, who are minors, for certain real estate described in the petition. It was admitted on the trial that Henry G. Paschall is the curator of plaintiffs, who are the sole heirs and legal representatives of Walter B. Carr, deceased; and that Walter B. Carr died before March, 1871, seized of the lot described, of which defendant is in possession. The damages were shown to be 1 cent for detention of the property, and the monthly rents 1 cent. Plaintiff then rested. During the further progress of the trial, evidence was introduced tending to show the following facts: On March 6, 1867, Eugenia L. Carr was appointed guardian of plaintiffs and curator of their estate. On March 25, 1871, the Probate Court made an order of sale of real estate of plaintiffs, including the lot sued for, the sale to take place on the fourth Monday of May, 1871, at the time and place and on the terms set forth in the order. This order was not complied with, and a renewed order of sale was made on July 11, 1871, to take place on the fourth Monday of August, 1871. On July 13, 1871, Eugenia L. Carr married Gerard B. Allen. On August 28, 1871, Eugenia L. Carr, in accordance with the renewed order of sale, sold the lot in question to Anna M. Peters, for $2,000, and at the next September term of the Probate Court, on September 21st, Eugenia L. Carr made report of this sale to the Probate Court. This report shows that the lot was appraised at $2,250, and that all requirements of the law were complied with. The report is verified by Eugenia L. Carr, and is signed “Eugenia L. Carr, guardian of Wm. C., N. Paschall, Eliza, and Walter Carr, minors.” Nothing appears in the proceedings by which the marriage of the guardian could be suspected. This report of sale was approved by the Probate Court on the day it was made. On September 30, 1871, the marriage of Eugenia L. Carr was suggested, her appointment as guardian was revoked by the court, and Henry G. Paschall was appointed curator of the estate of the minors, and qualified as such, and, on February 27, 1872, as curator, executed to the purchaser a deed of the lot. This deed, in addition to other recitals, sets forth that the sale was made by Eugenia L. Carr, then guardian of the Carr minors, on August 28, 1871; that Eugenia L. Carr reported the sale; its approval, the revocation of her appointment at the September term, by reason of her marriage, the appointment of Paschall at the same time. A deed of the same date, February 27, 1872, for the same property, was also executed by Gerard B. Allen and wife, Eugenia L., formerly Eugenia L. Carr, guardian of plaintiffs, and was delivered to Anna M. Peters. Peters conveyed the premises to Stewart, on November 1, 1872. Stewart erected valuable improvements on the lot, in good faith, and without any notice of plaintiffs' claim; and Spannagel is in possession under a lease from Stewart.

The court declared the law to be that “the sale by Eugenia L. Carr, after intermarriage with Allen, and her report of sale afterwards, were invalid and void; and that no title passed by the deed executed by the successor of said Eugenia, as guardian of the plaintiffs.”

The court found for plaintiffs, and judgment was entered accordingly; and defendant appeals.

It is contended by respondents that the marriage of Eugenia L. Carr, ipso facto, and without any action of the Probate Court, revoked her appointment as guardian; that she could perform no act as guardian after that date; that the sale, report, approval, and both the deeds to Peters, were, therefore, of no effect to pass to Peters any interest of plaintiff in the lot sued for.

Although, as far as we know, this is a case of first impression in this State, learned counsel for respondents contents himself, so far as this court is concerned, with making a statement of the facts and stating his point. He makes no argument and refers to no authorities in support of the action of the trial court.

Section 34 of article 1 of the chapter concerning administrations (Wag. Stat. 75) provides that if any administratrix marry, “the marriage shall extinguish her power, and her letters be revoked.” It is held ( Rucker v. Rucker, 59 Mo. 17) that, under this section, the letters are revoked by the fact of the marriage, and without any order of court. The language of the statute in regard to guardians is as follows (Wag. Stat. 675, sec. 18.): “No married woman shall be a guardian or curator of the estate of a minor, and if any woman, after her appointment, marry, the marriage shall operate as a revocation of her appointment.” It would seem that if no order of court is required in one case, it...