McCarty v. Rountree

• Decision Date: 31 January 1854
• Citation: 19 Mo. 345
• Court: Missouri Supreme Court
• Parties: MCCARTY & WIFE, Plaintiffs in Error, v. ROUNTREE, Defendant in Error.

19 Mo. 345

MCCARTY & WIFE, Plaintiffs in Error,

v.ROUNTREE, Defendant in Error.

Supreme Court of Missouri.

January Term, 1854.

1. Under our statute, the parent, as natural guardian, has no power to dispose of the property of the minor child not derived from such parent, before giving bond with security.

2. No demand before suit is necessary where the defendant is wrongfully in possession.

Error to Polk Circuit Court.

This was a suit commenced by Benjamin F. McCarty and Mary Ann, his wife, for the possession of a slave named Mary and her increase. The petition stated that Robert Noll, in the state of Tennessee, in 1836, gave the slave Mary to the plaintiff, Mary Ann, his grand-daughter, who was then an infant, residing in the family of her father, Abner F. Noll; that shortly afterwards said Abner F. removed with his family to Polk county, Missouri, bringing the said slave with him; that in 1838, said Abner F., without the consent of said Mary Ann, sold and delivered said slave to Campbell & Bunch, who sold and delivered her to the defendant. No demand before suit was alleged or proved. On the trial, there was evidence to sustain the allegations of the petition. The defendant offered some evidence, for the purpose of showing that Robert Noll really intended the gift for the benefit of his son, and made use of the name of the plaintiff, Mary Ann, to keep the slave beyond the reach of the creditors of Abner F. Noll.

The court directed the jury that the sale of the slave by the father, while in his custody as natural guardian, passed the title of the ward, if there was no fraud on the part of the purchaser; and refused to instruct that the father had no control over the slave as natural guardian, unless he had given bond with security, as required by statute.

Leonard and Hayden, for appellant.

1. A guardian by nature has no authority at common law over the estate of his ward, and even by our statute, he has no such authority, until he has given the security required by the statute, except perhaps over property that he himself may have given to his child. R. C. 1835, tit. “Guardian and Ward,” secs. 1 and 7. R. C. 1845, same title, secs. 1 and 17. Hyde v. Stone, 7 Wend. 354. May v. Calder, 2 Mass. 55. Mills v. Boyden, 3 Pick. 216 and 217. Genet v. Talmadge, 1 Johns. Ch. Rep. 4. Children are the favorites of courts of Justice, and being incapable of protecting themselves, are under the peculiar protection of the courts of the country. If it were required, the courts would be warranted by the necessity of the case, in straining the words of the statute so as to deny to the father any power over his child's property not derived from him, until he had given the security required by law. Here, however, there is no such necessity. The statute requires all other guardians to give security before they enter upon their duties, and then expressly requires guardians by nature to give security as other guardians; that is, before they enter upon the duties of their office; and it has always been held, even when not so expressly provided, that the provision is not merely directory, but a condition that must be fulfilled, in order to clothe the guardian with the power to act. 2. A guardian's authority over his ward's personal property, is a mere authority, without an interest--the title remaining in the ward, and the guardian being merely entrusted with authority to manage it for the ward's benefit; and so, a sale made by a father, in his own right, and not as guardian, transferring his own title, and not the title of his ward, cannot divest his ward's title. Granby v. Amherst, 7 Mass. 1. Mason v. Fletcher, 13 Pick. 206.

Wright and Gardenhire, for respondent.

The father, as natural guardian, possesses as ample power to control the estate of his minor children as any other guardian. Whatever might have been his authority at common law, our statute places him on the same footing as other guardians. The title to the personal property of the ward is vested in the guardian, and he has full power to dispose of it. The question as to the due exercise of the power arises between him and his ward, to whom he is responsible for the faithful discharge of his duties, but a stranger who buys from him in good faith will be protected. Field v. Schiffelin, 7 J. C. R. 150. The giving of bond and security is not a condition precedent to the guardian's right to act. The clause requiring bond to be given is merely directory. If he fails to give bond, the court may, upon suggestion, appoint a curator, but until that is done, his right to act and control the property of the ward continues. There was no demand before the commencement of this suit, which was necessary. 13 Ill. Rep. 315. The evidence tends to show that the slave was really intended for Abner F. Noll, and not for his daughter, and that, if her name was used in the transaction, it was to protect the property from his creditors. The instructions took from the jury all consid eration of the question of fraud.RYLAND, Judge, delivered the opinion of the court.

McCarty and wife brought their civil action in the Circuit Court of Polk county, against Rountree, for the recovery of a negro woman and her two children, slaves. The plaintiffs suffered a nonsuit under the instructions of the Circuit Court--moved to set the same aside, but failing in their motion, they excepted to the opinions of the court, and bring the case here by appeal.

From an examination of facts set forth in the record, the main question in the case involves the power of the father, as natural guardian, to manage and control the personal property of his child, which has come to the child from any other person than the father, before he has given bond, as required by our statute.

It is well settled that the guardian by nature has, at common law, power over the person only, and not the personal estate of the ward. The question here depends on the construction of our statute.

The first section of the act concerning guardians, curators and minors, (R. C. 1835, p. 294,) the law in force when the plaintiff's...