Exendine v. Morris

• Decision Date: 31 October 1882
• Citation: 76 Mo. 416
• Parties: EXENDINE, Appellant, v. MORRIS.
• Court: Missouri Supreme Court

76 Mo. 416

EXENDINE, Appellant,

v.MORRIS.

Supreme Court of Missouri.

October Term, 1882.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Norton, Martin & Dryden for appellant.

Where land is conveyed under a special authority, that authority must be strictly pursued. Denning v. Smith, 3 Johns. Ch. 344; Young v. Keogh, 11 Ill. 642; Langdon v. Poor, 20 Vt. 15; Thatcher v. Powell, 6 Wheat. 127; Head v. Providence Ins. Co., 2 Cranch 127; Robert v. Casey, 25 Mo. 584; Strouse v. Drennan, 41 Mo. 298. In Dudley v. Mayhew, 3 N. Y. 9, and Almy v. Harris, 5 Johns. 175, it is decided that “where a statute which creates a right gives no remedy, a party may resort to the usual remedy.” By a parity of reasoning, where a statute which prescribes a duty fails to prescribe the method of the execution of the duty, the duty must be executed in the usual manner; i. e., under the rules laid down in the general law for the performance of such duty. For instance, when the special act requires the guardian to execute a deed, and fails to specify what method of execution he shall follow, he of course must make his deed conform to the requirements of the general law.

Dyer, Lee & Ellis for respondent.

The act of the legislature did not prescribe the form of the deed. The proceedings of the county court cannot be collaterally attacked. McVey v. McVey, 51 Mo. 406; Pattee v. Thomas, 58 Mo. 163; Overton v. Johnson, 17 Mo. 442; Higgins v. Peltzer, 49 Mo. 152; Rugle v. Webster, 55 Mo. 246; Carr v. Spannagel, 4 Mo. App. 284.

HOUGH, C. J.

This is an action of ejectment, brought in March, 1877, for certain land in Lincoln county. The plaintiffs claim title by virtue of a deed made on the 10th day of January, 1848, by Charles Bennett, conveying said land to his daughter, Sarah E. Bennett, during her natural life, remainder in fee to her two daughters, Mary R. Bennett and Eleanor Bennett. Mary R. Bennett intermarried with the plaintiff James Exendine in 1863, and Eleanor Bennett intermarried with the plaintiff James Riffle in 1866. Sarah E. Bennett died December 10th, 1867.

The defendant claims title under a deed made May 5th, 1860, by E. J. H. Bennett, guardian and curator of Eleanor and Mary R. Bennett, to Jonah Morris under and by virtue of an act of the general assembly of the State of Missouri, approved January 4th, 1860, authorizing him to sell said land for three-fourths of its appraised value, subject to the approval of the county court of Lincoln county, and to re-invest the proceeds in lands in Hickory county, subject to the approval of the county court of Hickory county. Jonah Morris conveyed to the defendant.

The plaintiffs contend that the proceedings had by the guardian, E. J. H. Bennett, under the act of 1860, are void for want of conformity to the requirements of the act, and that his deed, therefore, conveyed no title to Jonah Morris. It is objected that no bond was given by the guardian, the instrument intended as such having no seal; that the Hickory county records show that Bennett was appointed guardian for Mary and Ellen Bennett, and not for Eleanor Bennett; that the land was appraised by three householders, and not by three freeholders; that the report of sale to the Lincoln county court was made not by Bennett, guardian and curator, but by “Bennett, curator, etc., per Geo. W. Zimmerman;” that the report of sale was approved by the Lincoln county court, and not the sale itself; that it does not appear in the deed from...