Hendricks v. McLean

• Decision Date: 31 March 1853
• Citation: 18 Mo. 32
• Parties: HENDRICKS, Appellant, v. MCLEAN, Respondent.
• Court: Missouri Supreme Court

18 Mo. 32

HENDRICKS, Appellant,

v.MCLEAN, Respondent.

Supreme Court of Missouri.

March Term, 1853.

1. Under the act regulating chancery practice, (R. C. 1845,) an order appointing a guardian ad litem for minor defendants who have not been served with process, is erroneous.

2. Under that act, it is no objection to a decree otherwise regular that it does not give infant defendants a day to show cause after coming of age.

Appeal from Franklin Circuit Court.

M. Frissell, for appellant.

I. The court could take no jurisdiction to the prejudice of the infant defendants, until they had been served with process. A guardian ad litem can only be appointed for a party in court.

II. No decree could be rendered upon the confession of the guardian ad litem without proof of the allegations of the bill.

III. The infant is entitled to a day to be heard in court.

Charles Jones, for respondent.

It is not material whether process was served upon the infant defendants or not, as the court appointed a guardian ad litem, who appeared and filed an answer for them.

RYLAND, Judge, delivered the opinion of the court.

This was a motion made in the Franklin Circuit Court, to set aside a decree heretofore made by that court in the case of Elijah McLean v. William Hendricks, Bernard J. Hendricks, John J. Hendricks, Mary Jane Hendricks, and Sophronia Ann Hendricks.

The motion is as follows, after naming the case as above: “Mary Jane Hendricks, by attorney and in behalf of her brothers, Bernard J. Hendricks, John J. Hendricks, and her sister, all of whom are minors except herself, moves the court to set aside the decree in this cause for the following reasons: first, the infant defendants, in that cause, were not before the court, no process having been served upon them and they having no guardian; second, said infants appear by solicitor; third, there is no time given, by the decree, for the infants to come in and show cause for setting aside the decree.

On the trial of this motion, the original bill of McLean v. Hendricks and others, together with the summons and return of the sheriff thereon, with various entries upon the record, and the answer of the guardian ad litem, were given in evidence by the said Mary Jane Hendricks.

The defendant offered in evidence the record and proceedings of a suit for partition, by Bernard Hendricks and others against Jacob Feeze.

The bill of complaint, filed by Elijah McLean originally, upon which the decree was made, on which the motion in this case was designed to operate, represented, that some ten or twelve years before the filing of the bill, one William Hendricks, of the county of Franklin, wishing to enter certain lands situated in said county, and not having the money. applied to one Ridenhour for a loan of the necessary amount. Finding that he could borrow the amount by giving security for the payment of the same, he executed his note, with one John Jones, as security, for the sum of one hundred dollars. With this money and with other money kept back from his creditors, he entered the lands. The bill charges, that he determined to defraud his security, Jones, and to defraud the complainant, McLean, to whom he was indebted about $70; that the entry was made in the name of his son, William James Hendricks, then a minor; that this was done to defraud his creditors; that said William J. Hendricks had no knowledge of the entry of these lands in his name, or that the same was designed to be entered in his name at the time; that the same was designed to be for his son, (William's) use and benefit, that he might fraudulently avoid the payment of his debts and still use the property purchased in his son's name; that the lands so purchased in the name of his son, and for the purpose and design aforesaid, were as follows: south-west quarter of the south-west quarter of section number four, township forty-two of range one, west, containing forty acres; also, south-east quarter of south-east quarter of section number five, township forty-two of range one west, containing forty acres; and caused the certificates to be issued in the name of his son. The bill also charges, that William J. Hendricks, at the same time, entered other lands in his own name, containing eighty acres, and caused certificates to issue in his own name; that Hendricks did, for the purpose of defrauding and cheating his creditors, transfer, by deed, about the same time, to his son, William James, the aforesaid lands, entered in his name. This deed was dated some time in the year 1841, and was for the consideration of natural love and affection. The bill charges, that this deed was made solely to defraud the complainant and other creditors; that the said William James had no notice of this deed; that it was made to keep the land, in his name, out of the reach of legal process of his grantor's creditors. The bill charges, that said Hendricks, anterior to this time, and at that time, and for many years, had been largely in debt, to the amount of several hundred dollars, exclusive of the amount due to Ridenhour, and to the complainant in the bill; that Hendricks refused to pay the note on which Jones was security to Ridenhour; that Jones had it to pay; that Jones sued Hendricks on this note and recovered judgment for the one hundred dollars debt, and nine dollars and ninety cents damages; that the execution issued on this judgment, was returned unsatisfied, for want of goods and chattels; that a transcript of the judgment was filed in the clerk's office of Franklin Circuit Court; that execution issued upon this transcript dated about the 20th February, 1846; that it was levied on the lands which had been conveyed, by deed, to William James Hendricks; that the lands were sold and Jones became the purchaser for one hundred and five dollars; that the sheriff made a deed to said Jones for the said lands, dated April 9, 1846; that an alias execution issued, and that said lands, with the other portions that had been entered in the name of William James Hendricks, were levied on, and that the sheriff was about to sell the same; that at this time, said Hendricks came to the complainant and represented that his home, farm and land were all about to be sacrificed, and that if the complainant would release his property from the claim of Jones, he, Hendricks, would make him a good warranty deed for the entire one hundred and sixty acres, in payment of what he then owed the complainant which was about two hundred dollars. The bill also charges, that McLean, the complainant, being entirely ignorant of the fact that one-half of the land had been entered in the name of William James Hendricks, and deceived by the fraudulent representations of said defendant, agreed to his proposal and paid the debt of the said Jones, amounting to near two hundred dollars and costs, and took from Jones his quit-claim deed for the eighty acres which the sheriff had previously sold to him; that said Hendricks made to complainant his deed for the one hundred and sixty acres, as he had proposed, for the consideration of what he paid to Jones for the defendant, together with what defendant was owing him, making about three hundred dollars; that the complainant now having Jones' title and defendant's title, and believing the same to be good, sold the land to one Jacob Feeze, for a valuable consideration, and made a general warranty deed for the same; that some time subsequent to this sale, Feeze informed the complainant that the children of said Hendricks, minors, by their next friend, who was their father, had instituted in the Franklin Circuit Court a suit for partition of the aforesaid lands against him, said Feeze, they claiming as heirs of their said brother, William James Hendricks, deceased. The bill charges, that now, for the first time, the complainant learned that any other person claimed title to any of the said lands, and desiring that said Feeze should not be harassed, he purchased the said lands back from Feeze, and Feeze reconveyed the same to the complainant; that William J. Hendricks died some time in the year 1846; that there was no administration of his estate, nor was he known to have any until said William Hendricks, the father, wishing to consummate the fraud upon your orator, brought the suit for partition, as next friend for his children. The bill charges that the entry of the eighty acres in the name of William J. Hendricks was fraudulent, with design to cheat, hinder and delay the creditors; that the deed to Willlam J., from his father was also fraudulent, being for the same purpose; that the pretended claim of his children, the minors aforesaid, to-wit: Bernard J. Hendricks, John J. Hendricks, Mary J. Hendricks and Sophronia A. Hendricks, was fraudulent--makes these minors parties with their father; that the claim set up is without their knowledge and is solely the act of said William Hendricks, and is a false and fraudulent transaction. The bill prays for a decree vesting title in complainant and for general relief.

Summons issued on this bill against the defendants, William, Bernard J., John J., Mary J. and Sophronia A. Hendricks. This writ was served as follows: “Executed the within on the second day of March, 1849, by reading the plaintiff's bill of complaint and summons to the same attached to and in the hearing of the said William Hendricks on the above day; also by delivering him on the same day a true copy of the plaintiff's bill of complaint.

A. W. JEFFRIES, Sheriff,

By J. W. GREENSTREET, Dept.”

On the 2d of April, 1849, the answer of the guardian ad litem was filed for the infants. The answer is as follows: “This defendant cannot deny the facts and allegations in said complainant's bill of complaint contained.”

The record shows, that John D. Stevenson was appointed guardian ad litem for Bernard, John J., and Sophronia A. Hendricks on the 2nd April, 1849.

On the 5th of April, 1849, the parties appeared by solicitors and the cause was tried. The...