Kearney v. Vaughan

Decision Date31 July 1872
PartiesCHARLES E. KEARNEY et al., Defendants in Error, v. SAMUEL D. VAUGHAN et al., Plaintiffs in Error.
CourtMissouri Supreme Court

Error to Kansas City Court of Common Pleas.

W. Hough, for plaintiffs in error.

I. A court of equity has no inherent power to sell infants' real estate. (Field v. Moore, 19 Beav. 176; Calvert v. Godfrey, 6 Beav. 97; Forman v. Marsh, 1 Kernan, 551; Wood v. Mather, 38 Barb. 484; Vowles' Heirs v. Buckman, 6 Dana, 466; Williamson v. Berry, 8 How. 556.)

J. E. Merryman and Karnes & Ess, for defendants in error.

“The court of chancery had inherent jurisdiction, independently of the statute, to order the sale of the equitable interests of infant plaintiffs.” (Inwood v. Twyne, 2 Eden's Ch. 153; Wood v. Mather, 38 Barb. 482.)

Whenever an encumbered estate devolves on an infant and a sale is demandable by a third person, the court of chancery may order its sale on petition of the infant. (Adams' Eq. 642-4; Snover et al. v. Snover, 2 Green, N. J., 85; Ex parte Salisbury, 3 Johns. Ch. 347; Hedges et ux. v. Riker et al., 5 Johns. Ch. 163 et seq.; Field v. Schieffelin, 7 Johns. Ch. 154; Monday v. Monday, 1 Ves. & B. 223; Williams v. Harrington, 11 Ired. 620-1; Ashburton v. Ashburton, 6 Ves. Ch. 6.)

II. The acts of these infants in procuring the order to sell are at farthest only voidable, not void. (2 Kent, 252, 253, note; Gates v. Kennedy, 3 B. Monr. 167; Moore's Heirs v. Moore, 12 B. Monr. 651; Valle's Heirs v. Fleming, 29 Mo. 163-4; Ferguson et al. v. Bell's Adm'r, 17 Mo. 351.)

BLISS, Judge, delivered the opinion of the court.

The plaintiffs claim lot 243 in Old Town, now Kansas City, and show that in 1847 the “Old Town Company,” consisting of John C. McCoy and others, were the proprietors of this and other lots; that they appointed Pierre M. Chouteau their attorney in fact to sell and convey said lots; that Ezekiel Huffman purchased this lot, and that said Chouteau undertook to convey him the same, but by a deed defective in this: that it recites that the indenture was made and entered into by and between the said Chouteau as attorney in fact of the owners (naming them) of the first part, and said Huffman of the second part, and was signed and acknowledged by said Chouteau, who, however, attests that he executed it “as attorney in fact as aforesaid.” The plaintiffs claim through this deed, and that, although it did not technically convey the legal title of the proprietors, yet, as they received the consideration, and the instrument was intended as a conveyance--the said attorney in fact being regularly authorized to sell and convey--equity will correct the error and execute the power; and this is the principal object of the proceeding. Of this there is no question, unless a subsequent equity intervenes. “An agreement under seal by an attorney for a principal, inoperative at law for want of a formal execution in the name of the principal, is binding in equity if the attorney had authority.” (1 Am. Lead. Cas. 608, and cases cited.) We must consider that the consideration was paid for it, was so recited in the instrument, and the contrary was not shown; and also that Chouteau was empowered to sell and convey, for so the power of attorney reads, notwithstanding he testifies that the owners usually sold and he conveyed.

The chief controversy upon the trial arose, first, upon the right of the plaintiffs to the property as claiming under Huffman; and, second, upon the equities of defendants as innocent purchasers.

1. The evidence shows that Huffman, in 1848, conveyed to Burnett Scott, who took possession and made some improvements upon the lot. He went to California in 1849 and died. A record of a partition suit among the heirs of Scott was read and objected to by defendants for alleged irregularity, by which this lot was assigned to the widow as dower; but it cuts no figure, as plaintiffs' title is derived from the heirs by a subsequent proceeding. This proceeding was a petition in 1859 for a sale of the property filed in the Court of Common Pleas by the widow and her then husband, Thomas Miller, and the guardians of the Scott heirs. This decree for sale was made before the passage of the act of 1861 (Sess. Acts 1860-1, p. 98), the substance of which was embodied in the General Statutes, authorizing Circuit Courts to order the sale of the real estate of minors, and the proceeding could not have been founded on that statute. Under some circumstances, however, it has been held that a court of equity will order the sale of the real estate of minors, though it is not supposed that the general power exists independently of statute. If this were a proceeding by the heirs to recover their property notwithstanding the sale, it would be necessary to scrutinize it, to examine the authority of the court to order it, and to see whether it could be sustained. But the defendants have no interest in that question; the heirs are not contesting, they are not made parties, and may be satisfied with the sale and be willing to abide by it. They are not concluded by the plaintiffs' judgment, and so far as this case is concerned we are at liberty to treat the sale as having passed title to the plaintiffs.

Counsel cite authorities to show that chancery proceedings to sell the real estate of minors are void, and that such minors, when arriving of age, may repudiate them and recover the property sold, and insist that if void they are a nullity, and cannot be treated as valid for any purpose.

It is, perhaps, unfortunate that we are not supplied with a term of more precision than the word “void,” a word more often used to point out what may be avoided by those interested in doing so than to indicate an absolute nullity--a proceeding or act to be disregarded on all occasions. Of the latter class we might instance a common-law judgment rendered by a town council or County Court, or a conveyance by a stranger to the title while the real owner is in possession under a record title. But many things are called void which are not absolutely so, and, as to...

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39 cases
  • Heady v. Crouse
    • United States
    • Missouri Supreme Court
    • February 22, 1907 That power rests with the Legislature." This same question was referred to, but not decided, by our Supreme Court in Kearney v. Vaughan, 50 Mo. 284. In that case the right to order a sale was questioned by a stranger. The court held that a stranger to the sale could not raise the......
  • Och v. The Missouri, Kansas & Texas Railway Company
    • United States
    • Missouri Supreme Court
    • July 2, 1895
    ...or set aside. Stewart v. Rector, 1 Mo. 361. This case was followed and approved in Mitchell v. Parker, 25 Mo. 31; see, also, Kearney v. Vaughan, 50 Mo. 284. The law as announced is, we think, applicable to the case at bar on this theory of the case. If the money received by Mrs. Och was in ......
  • Shaffer v. Detie
    • United States
    • Missouri Supreme Court
    • November 22, 1905
    ... ... 584; Singer Mfg. Co. v. Lamb, ... 81 Mo. 221; Huth v. Marine Ry. & Dock Co., 58 Mo ... 202; Baker v. Kennett, 5 Mo. 82; Kearney v ... Vaughn, 50 Mo. 284; Furgurson v. Bell's ... Admr., 18 Mo. 347; Downing v. Stone, 47 Mo.App ... 144. (b) One who is not a party to a ... ...
  • Och v. Missouri, K. & T. Ry. Co.
    • United States
    • Missouri Supreme Court
    • July 2, 1895
    ...or set aside. Stuart v. Rector, 1 Mo. 361. This case was followed and approved in Mitchell v. Parker, 25 Mo. 31. See, also, Kearney v. Vaughan, 50 Mo. 284. The law as thus announced is, we think, applicable to the case at bar on this theory of the case. If the money received by Mrs. Och was......
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