Larned v. Renshaw

• Decision Date: 31 March 1866
• Citation: 37 Mo. 458
• Parties: CHARLES T. LARNED AND PHILOMENA LARNED, HIS WIFE, Appellants, v. WILLIAM RENSHAW, JR., Respondent.
• Court: Missouri Supreme Court

37 Mo. 458

CHARLES T. LARNED AND PHILOMENA LARNED, HIS WIFE, Appellants,

v.WILLIAM RENSHAW, JR., Respondent.

Supreme Court of Missouri.

March Term, 1866.

Appeal from St. Louis Land Court.

Broadhead, for appellants.

The proceeding in partition was void. This was a proceeding under the act of 1835, R. C., similar to the provisions of the present law. The parties interested all joined; there was but one attorney for all; the three minors appear by their curator Beckwith. This was no suit, not even a proceeding in partition. Our Supreme Court has decided, in case of Waugh v. Blumenthal, 28 Mo. 462, that the proceeding in partition is sui generis; not a suit, but a proceeding, and that it may be ex parte. But we contend that it must be by parties competent to act in their own right, and infants cannot join in partition. (Johnson v. Noble, 24 Mo. 252.) The statute of 1835, however, under which this proceeding was had, does not give the right to sue by curator, but by guardiam. (R. C. 1835, p. 426, § 36.) This right to sue by curator was never given till 1857 (Sess. Acts. p. 83). The person of the party must be in court; the guardian represents the person, the curator the property.

Krum & Decker, for respondent.

I. This court decided, in the case of Thornton et al. v. Thornton, 27

Mo. 303, that infants may be made parties plaintiff in statutory proceedings in partition. The case now at bar is within the rule and principle decided in Thornton et al. v. Thornton. If the rule in that case is adhered to, it disposes of the question in this case.

In support of the rule laid down in the case quoted, we submit the following rules from elementary writers, and also a series of adjudications made in analogous cases, viz:

Co-parcenary is not distinguishable from tenancy in common in U. S.--4 Kent, 367.

In equity an infant could be plaintiff and be as much bound as an adult-- Allnott, 104.

Parceners at common law could make partition by parol--Allnott, 125.

But under American law, and under our own statute, tenants in common and joint tenants may be compelled. There is no real difference between co-parcenary and tenancy in common under American law--4 Kent, 367, & ante.

Such partition by guardian, or curator, will bind if equal--Allnott, 29.

II. The proceedings in partition were not void--5 Ohio, 243; 4 Ills. 104; 5 Ills. 364; 4 Dana, 429; 14 Ohio, 228; 5 Ohio, 243; Swan, Ohio Stat. 593.

Our Supreme Court does not decide them to be void either in 24 Mo. 252, or Id. 385.

If not void, they are conclusive of the rights of parties in this case--8 Metc. 596; 8 N. H. 393; 4 Ills. 104; 5 Ills. 364; 4 Dana, 429; Allnott, 27, 28; Co. Litt. 171.

WAGNER, Judge, delivered the opinion of the court.

The only question presented by the record in this case is, whether the proceedings and judgment in the partition suit of Thomas F. Smith and his infant children were valid and binding. No other question was raised in the court below by the instructions of the appellants, and nothing else was passed on, and that alone will be reviewed here.

The proceedings in partition were had under the provisions of the revised statute of 1835, which is in substance similar to the present law. The petition was signed by Smith in his own proper person, and the minors appeared by their curator, Beckwith. They all joined as plaintiffs, and the whole proceeding was ex parte.

It is contended by the counsel for appellants, that, the parties being all plaintiffs, there was no suit; that although an action for partition may be ex parte, yet it must be by parties competent to act in their own right, and that infants cannot voluntarily join; that the person of the party must be in court, and that the guardian represents the person, the curator the property; and that the statute of 1835 does not give the right to sue by curator, but by guardian.

The distinction here taken between guardian and curator, we think, is more artificial than real, when applied to the question involved in this case. Undoubtedly there is a line of demarcation existing between them, and they perform separate functions; they may respectively be committed to different persons, though both are frequently joined in the same individual. A curator is a person who has been legally appointed to take care of the interests of one who, on account of his youth, or defect of his understanding, or for some other cause, is unable to attend to them himself. In the civil law, the term curator is employed for guardian, but by the common law a guardian is one who has been lawfully invested with the care of the person of an infant. Both are the representatives of their interest. By the R. C. of 1835 it is provided that “all guardians and curators shall be allowed to prosecute and defend for the minors, in all matters committed to the care of such guardians and curators, respectively, without further admittance, in the several courts of this State,” and this provision has been incorporated in all the subsequent revisions. It is true, by the 36th section of the act concerning partition, in the Laws of 1835, the term “guardians,” is alone used where an authorization is expressed, empowering them to appear on behalf of their wards, to do and perform any matter or thing respecting the division of lands, tenements, or hereditaments, which shall be deemed as valid as if the same had been done by the ward, after his disabilities had been removed.

But after the decision in this court in Johnson v. Noble, holding that an infant could not be a party plaintiff in a statutory proceeding for partition, the Legislature passed an act providing that “when any minor is interested in any real estate in which there are other parties holding undivided interests, it shall be lawful for the guardian, or curator, of such minor to file a petition for the division and partition of such real estate” (Sess. Acts 1856-7, p. 83); and Judge Richardson, commenting on this act, said:...