Cox v. Boyce
| Decision Date | 12 December 1899 |
| Parties | Cox v. Boyce et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Lincoln Circuit Court. -- Hon. Chas. W. Wilson, Special Judge.
Reversed and remanded (with directions).
Martin & Woolfolk for appellants.
(1) The finding of the court that plaintiff had curtesy interest in the land was erroneous. The life estate of Mrs. Joseph Hunter was outstanding when plaintiff's wife died. In such a case no estate of curtesy exists. There was no seizin in the wife. Martin v. Trail, 142 Mo. 85. (2) In treating the only question presented upon the hearing it would be well to dispose of the cases of Lacy v. Williams, 27 Mo 280; Marheineke v. Grothaus, 72 Mo. 204; Garrison v. Lyle, 38 Mo.App. 558, and other cases of like import by saying that in none of them did the question of jurisdiction arise in a collateral proceeding like the one at bar; but in all of them the question arose in a direct proceeding between guardians appointed or applications for appointment of guardians in different jurisdictions. For this reason none of these cases can have any bearing upon the question now being considered, as the attempt here is to show in a collateral proceeding that the probate court of Howell county had no jurisdiction to appoint Slater guardian and curator. This distinction is made clear in Johnson v Beasley, 65 Mo. at pages 255 and 256. (3) A court can lose jurisdiction of a matter, once under its jurisdiction by its failure to act in proper time -- a failure to exercise that jurisdiction when it was its duty to do so. Black on Judg., sec. 243; Witt v. Hinge, 58 Wis. 244. (4) The order of the Howell county probate court, appointing Slater guardian and curator of Sarah M. Cox, after eight years residence by her in Howell county, was not void or without jurisdiction because of the previous appointment, but, at most, simply erroneous or irregular and liable to be reversed on appeal or vacated on a proper application in a direct proceeding, but not subject to collateral attack. Johnson v. Beasley, 65 Mo. 256; Scott v. Crews, 72 Mo. 263; State v. King, 76 Mo. 513; Henry v. McCorkle, 78 Mo. 425; State v. Evans, 83 Mo. 325; Vosler v. Brock, 84 Mo. 574; Camden v. Plain, 91 Mo. 129; Borders v. Brown, 91 Mo. 432; State v. Malon, 99 Mo. 578; Bradford v. Wolf, 103 Mo. 391; Williams v. Mitchell, 112 Mo. 308; Marcy v. Stark, 116 Mo. 481; Leonard v. Spark, 117 Mo. 116; Rogers v. Johnson, 125 Mo. 213; Carey v. West, 139 Mo. 146; Howell v. Jump, 140 Mo. 441; Powers v. Sheckman, 126 N.Y. 554; O'Connor v. Higgins, 113 N.Y. 511.
Norton, Avery & Young for respondent.
(1) The mother died in Lincoln county, Missouri. The father, the natural guardian and curator, lived here. Therefore the probate court of Lincoln county alone had jurisdiction to appoint a curator. Lacy v. Williams, 27 Mo. 280; Garrison v. Lyle, 38 Mo.App. 558; Marheineke v. Grothaus, 72 Mo. 204. (2) The county court of Howell county had no authority to appoint a curator for a child who was not a resident of the county in which the order of appointment was made. The order of appointment was void and may be treated as a nullity in a collateral proceeding. Lacy v. Williams, 27 Mo. 282; Garrison v. Lyle, 38 Mo.App. 553; Marheineke v. Grothaus, 72 Mo. 204. (3) Even though the child had resided in Howell county the appointment by the probate court of this county was a mere nullity because the probate court of Lincoln county had acquired jurisdiction and exercised it. The child had a curator subject to the orders of the Lincoln county probate court and that curator alone could act. Garrison v. Lyle, 38 Mo.App. 558. (4) This deed can be attacked collaterally because there was no subject-matter for the court to have jurisdiction of. The child already had a living representative, i. e., the curator appointed by the probate court of Lincoln county, Missouri. Andrews v. Avery, 73 Am. Dec. 356; Thompson v. Whitman, 18 Wall, 457; Rose v. Himely, 4 Cranch. 244; Griffith v. Teague, 3 Cranch. 23; Starbuck v. Murray, 21 Am. Dec. 177; Elliott v. Piersol, 1 Peters, 340; Post v. Caulk, 3 Mo. 31; State to use v. Green, 65 Mo. 530; Warren v. Carter, 92 Mo. 288; McCoy v. Stark, 116 Mo. 481; Freeman's Void Judicial Sales (1 Ed.), sec. 10; Rorer Judicial Sales (2 Ed.), secs. 452 and 488; Woerner's Am. Law Admr. (1 Ed.), sec. 247.
This is an action of ejectment, coming from the circuit court of Lincoln county.
The plaintiff claims the land in suit as sole heir of his deceased infant child, who was the sole heir of her deceased mother, who was the wife of plaintiff. Defendant claims under a deed from the child's curator made under judgment of the probate court of Howell county. The case turns on the question as to the validity of that deed.
There is an equitable defense set up in the answer, but as the case will be disposed of before we reach that defense it will be unnecessary to set it out in this statement.
The land came from Joseph Hunter, who was the great-grand-father of the plaintiff's deceased child, through whom he claims. Joseph Hunter died in 1877, leaving a will whereby he devised his land to his wife for life, remainder to his nine children, and their heirs. One of these children died leaving two children, of whom plaintiff's wife was one, who therefore inherited one half of one ninth, subject to her grandmother's life estate, and dying in 1884, before her grandmother, the descent was cast on her child, who inherited the estate in expectancy, subject to her great-grand-mother's life estate. This great-grand-mother died in 1890, whereupon the life estate ended, and the remaindermen were entitled to possession.
After the death of his wife, in 1884, the plaintiff took his child, then but a few months old, to her maternal grandfather, Samuel Slater, and gave her to him to keep and care for, and he did so, the child living with him until her death in 1893. When the child was first given to Slater in 1884 all the parties named resided in Lincoln county. In July of that year the probate court of Lincoln county appointed Slater curator of the estate of the child and he qualified as such, but the child had no estate except her expectancy in this land. Later in the same year Slater moved to Howell county, and carried the child with him, where they resided until her death in 1893, and where he continued to reside. The records of the probate court of Lincoln county show no proceedings in the matter of the curatorship after the appointment. In 1891, after the death of the great-grand-mother and the termination of the life estate, the child being then entitled to possession of her share of the land, the probate court of Howell county appointed Slater curator of the child, he qualified as such, and regular proceedings in that matter were thereafter had in that court, in the course of which the court ordered the curator to sell his ward's interest in the land, which he did and made the deed under which defendants claim. The regularity of the proceedings in the probate court of Howell county are not questioned, but the point is made that those proceedings, though regular on the face of the record, were coram non judice because the probate court of Lincoln county had already taken jurisdiction of the matter when the parties were resident there, and had appointed a curator who had not been discharged. That is the real point of contention in this case.
The trial was by the court without a jury and the finding and judgment were for the plaintiff, from which this appeal is regularly taken.
I. From the written opinion filed in the case by the learned trial judge it appears that whilst in his opinion the judgment of the Howell county probate court was not subject to the collateral attack made on it, yet the plaintiff was entitled to recover because he had an estate by the curtesy in the land, basing the conclusion on the decisions in Reaume v. Chambers, 22 Mo. 36, and Stephens v. Hume, 25 Mo. 349.
In those cases it was decided that an estate by the curtesy initiate, did not depend on actual seizin during coverture, for the reason that under our law, actual seizin in the ancestor is not necessary to cast descent. But the right of seizin during coverture is essential to an estate of curtesy initiate. The law on this subject is discussed and clearly shown in Martin v. Trail, 142 Mo. 85, 43 S.W. 655. Therefore, since the plaintiff's wife died during the lifetime of her grandmother, who was a life tenant under the will of Joseph Hunter, there was no right of possession during the coverture, and hence no estate of curtesy.
II. But the point of plaintiff's chief reliance is in his proposition that the probate court of Howell county was without jurisdiction, and all its proceedings in this matter void.
It is a well settled doctrine that if the subject of the adjudication is of the kind of which the court has no jurisdiction, its judgment is a nullity and may be treated as such, even in a collateral attack. But if it is a subject of the kind of which the court has jurisdiction, and it appears on the face of the record that the proper parties were before it and that it proceeded within its lawful bounds, the judgment can not be impeached except in a direct attack.
The probate courts of this State, though they are of limited, are not of inferior jurisdiction, and when they...
To continue reading
Request your trial