Gibson v. Shull

• Decision Date: 28 June 1913
• Parties: JAMES A. GIBSON, Curator of Estate of WILLIAM T. JONES, v. SAMUEL S. SHULL, Appellant
• Court: Missouri Supreme Court

158 S.W. 322

251 Mo. 480

JAMES A. GIBSON, Curator of Estate of WILLIAM T. JONES, v. SAMUEL S. SHULL, Appellant

Supreme Court of Missouri, First Division

June 28, 1913

Appeal from Buchanan Circuit Court. -- Hon. Lucien J. Eastin, Judge.

Affirmed.

Warren Rogers for appellant.

(1) The petition filed in this case is wholly bad. The curator seeks to sue in his own name as such. That he cannot do. Reed v. Wilson, 13 Mo. 28; Koenig v. Union Depot Co., 194 Mo. 572; Webb v. Hayes, 166 Mo. 50. (2) There was no appointment, in law, of a curator of Jones. "A probate court shall have no jurisdiction to inquire into the sanity of a person who owns no property." R.S 1909, sec. 474. No part of the record of the probate court shows that that court found Jones was owner of any property or that any such showing was made to the probate court. The petition, if any was filed, on which a hearing was based, is not shown by any record in evidence. There was no legal appointment. (3) The probate record shows that Jones was not in that court at the inquest. That record, also, fails to show that he was "notified of the proceeding" in that court against him looking to the ascertainment of his condition, giving him time to defend himself, or in any way setting a day for him to appear in said matter in said court. This failure may have been attempted to be excused by the recital in the record that: "The said William T. Jones being unable to appear in open court," etc. The recital aforesaid follows the language of the statute (Sec. 476, R.S 1909), but that clause of the statute is unconstitutional. Hunt v. Searcy, 167 Mo. 158. (4) The petition fails to state facts sufficient to constitute a cause of action in that it nowhere appears from the petition that there is an ability and willingness on the part of plaintiff to place the defendant in statu quo, or that the defendant knew that the ward was insane at the time of the transaction in question and took advantage of him. Jamison v. Culligan, 151 Mo. 410; Wells v. Mutual Assn., 126 Mo. 630; Banking Co. v. Loomis, 140 Mo.App. 73; Rhoads v. Fuller, 139 Mo. 179. (5) It was error for the court to permit the introduction of the probate court proceedings held several days after the land had been deeded to appellant, for the purpose of showing or bearing on the condition of Jones's mind at the time of such sale or any other time. Rhoads v. Fuller, 139 Mo. 179.

E. M. Swartz and Mytton & Parkinson for respondent.

(1) Technically, the title of the cause should have been Jones, by his curator, plaintiff, but the error appeared on the face of the petition and the defect was waived when appellant answered. He could only have raised this question by demurrer. Baxter v. Transit Co., 198 Mo. 1; Taylor v. Pullen, 152 Mo. 434; Jones v. Steele, 36 Mo. 324. (2) The probate records were introduced but appellant failed to incorporate them in the bill of exceptions. (3) The petition does state a cause of action, that the deed was without consideration. That Jones was of unsound mind, and incapable of managing his affairs is assumed, in the absence of demurrer, that defendant knew his condition, and after verdict it is implied, and when he failed to demur, he waived the insufficiency of the allegation. Lycett v. Wolff, 45 Mo.App. 489. Furthermore, the evidence disclosed that appellant did not deal fairly; sufficiently so to draw the inference that appellant was bound to know that he was dealing with an imbecile. Besides, the deed was without consideration and so found by the court. The judgment simply recites that Shull paid to Jones $ 216.50, but not on the conveyance, and requires that said Shull be reimbursed his outlay. Shull had taken two deeds from Jones to the same land and had advanced him money from time to time. The respondent is bound by the judgment to repay the $ 216.50, although the pleadings do not tender it back nor demand reimbursement; but appellant cannot complain because it places him in statu quo. The judgment sustains the allegations in the petition. The respondent admits that under the authorities of this State a deed from a non compos, not under guardianship, is voidable only, especially where a good and fair price is paid. 22 Cyc. 1171; Lock v. Brecht, 166 Mo. 242; Rhodes v. Fuller, 139 Mo. 179; Younger v. Skinner, 14 N.J.Eq. 389. Surely the appellant cannot claim to come within the above rule in this case. The transaction shows that no man of ordinary prudence would have engaged in it. It was, therefore, of no validity, and it was unnecessary to tender back what had been received. Halley v. Troester, 72 Mo. 73.

OPINION

GRAVES, J.

Plaintiff is the duly qualified curator of William T. Jones, who was declared to be of unsound mind by the probate court of Buchanan county in July, 1909. Plaintiff, as curator, sues to have set aside a certain deed made by Jones to Shull for an undivided three-fourths interest in forty acres of land in Buchanan county on the ground, as stated in the petition:

"That at the time of said conveyance the said William T. Jones was of unsound mind and incapable of contracting and incapable of managing his affairs; that there was no consideration for said deed; that Samuel S. Shull has placed said deed of record in book 385 at page 194 in the Recorder's office of Buchanan county, Missouri, and the same now constitutes a cloud upon the title of curator's said ward."

The answer was a general denial.

There was proof pro and con on the mental condition of Jones at the date of the deed, as well as of circumstances tending to show that defendant took advantage of Jones's mental condition, a condition superinduced by long and continuous use of ardent spirits. It will suffice to say that the proof upon the question of mental condition is such that we will not dispute the judgment of the chancellor nisi, who faced the witnesses, and was in a better position than are we to judge the credit to be given to them. The evidence will amply justify the finding that Jones was not mentally capable of making a deed, when this deed was executed, and whilst we are not bound by the finding below this court does not usually disturb such findings unless we can point to some good reason therefor. Under the facts we do not feel like this finding and judgment should be disturbed, unless some of the more technical reasons assigned by defendant are found to be of substantial force.

This shortly states the case, leaving for the opinion a recital of such pertinent facts as may be required for the disposition of the points suggested supra. These points we take in their order.

I. Respondent seriously contends that we should affirm this judgment because the defendant has not presented to us all the testimony in the case, but has presented only garbled excerpts thereof. In equity cases our rule requires a full presentation of the evidence to this court for the very good reason that in such case the trial here is to the effect of a trial de novo. In other words, whilst we look upon the finding in the lower court as persuasive, we do not allow it to be binding, unless our minds run with the chancellor below on the facts, or unless the facts are conflicting and close and we yield to his judgment because of his better position to judge of the credibility of the respective witnesses. In this case we yield to the judgment of the chancellor trying it below upon the facts pro and con on the question of mental condition at the date this alleged deed was made. Upon this question the court found:

"The court finds and decrees that the said William T. Jones was of unsound mind, incapable of contracting and incapacitated from managing his affairs at the time of the execution of the purported conveyance dated June 10, 1909, whereby he purported to convey to Samuel S. Shull, the defendant, the undivided three-fourths interest of land of the northeast quarter of the northwest quarter of section twelve, township fifty-six, range thirty-six, Buchanan county, Missouri, which said conveyance is of record in the Recorder's office of Buchanan county, Missouri, in Book 385 at page 194."

We are not prepared to say, however, that the evidence is not sufficiently abstracted for us to place ourselves in the position of the chancellor, nisi, if we deemed it necessary to review the facts in full, and declare a different conclusion from those facts. Such being the status of the abstract we overrule this contention of the respondent, and will take up the objections of the defendant to this finding and judgment.

II. First we are met with the proposition that the suit is in the name of the curator personally, and for that reason the judgment cannot stand. The style of the case is indicated by the caption at the beginning of the opinion. In the petition we find this statement:

"Now at this day comes James A. Gibson, curator of the estate of William T. Jones, of unsound mind, and states that heretofore, to-wit on the day of July, 1909, his ward, said William T. Jones, was duly and legally declared to be of unsound mind and incapable of managing his affairs, by the probate court of Buchanan county, Missouri; that thereupon the petitioner James A. Gibson, was, by the probate court of said county, duly and legally appointed curator of the estate of said William T. Jones, and the said James A. Gibson thereupon, on said day of July, 1909, did then and there duly qualify as such curator and enter upon the discharge of his duties as such, and now is duly acting in that capacity."

Defendant in the brief says that the petition is wholly bad, because the curator sues in his own name, rather than in the name of his ward. It is true that the title to property is in the ward and not in the curator. It is also true that the action should be...