McKay v. Snider, 39337.

• Citation: 190 S.W.2d 886
• Decision Date: 05 November 1945
• Docket Number: No. 39337.,39337.
• Parties: HENRY A. McKAY, Guardian and Curator of JOHN T. ARNOLD, a Person of Unsound Mind and Incapable of Managing His Affairs, and HAZEL ARNOLD, His Wife, Appellants-Plaintiffs, v. D.A. SNIDER, Guardian and Curator of ROY A. LAWRENCE, a Person of Unsound Mind and Incapable of Managing His Affairs, ROY A. LAWRENCE, and DAN BOYD, Trustees, Appellants-Defendants.
• Court: United States State Supreme Court of Missouri

190 S.W.2d 886 HENRY A. McKAY, Guardian and Curator of JOHN T. ARNOLD, a Person of Unsound Mind and Incapable of Managing His Affairs, and HAZEL ARNOLD, His Wife, Appellants-Plaintiffs,
v.
D.A. SNIDER, Guardian and Curator of ROY A. LAWRENCE, a Person of Unsound Mind and Incapable of Managing His Affairs, ROY A. LAWRENCE, and DAN BOYD, Trustees, Appellants-Defendants. No. 39337. Supreme Court of Missouri. Division One, November 5, 1945. Rehearing Denied, December 3, 1945.

[190 S.W.2d 888]

Appeal from Butler Circuit Court. — Hon. Randolph H. Weber, Judge.

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

John T. McKay for plaintiffs-appellants.

(1) The court erred in its decree establishing a lien for $1000 with interest against the lands described in plaintiff's petition herein described, and fixing the date of the payment of said lien, over the objections and exceptions of the plaintiffs at the time. Capen v. Garrison, 193 Mo. 335; Buie v. White, 94 Mo. App. 367; In re Taylor Estate, 5 S.W. (2d) 461; Wall v. Hartford, 142 Mo. App. l.c. 398; In re Lee, 182 Fed. 579; Nichols v. Waukesha Canning Co., 195 Fed. 807. (2) The statute prescribes the only purpose for which a curator, even with the sanction of the probate court, may mortgage his ward's lands, and the borrowing of money to discharge a pre-existing encumbrance is not one of these purposes. Sec. 3504, R.S. 1899. The expression, therefore, of that particular purpose in the statute is in effect the exclusion of all others, and it means that the power to encumber the ward's property does not exist except for the purposes expressed in the statute, and except that it be exercised in the manner prescribed by the statute. Begley v. Phillips, 117 Fed. 105; Capen v. Garrison, 193 Mo. 335. (3) The note and deed of trust executed on the 29th day of May, 1939, to the Peoples Bank of Holcomb, in the sum of $550, are each void and of no binding force and effect against the estate, and the guardian and curator was unauthorized to take credit in the fifth annual settlement offered in evidence in this cause for the said sum of $550, for the reason that Sections 475, 476, 477 and 478 were not complied with in the petition and order purporting to give the guardian and curator authority to execute the note and mortgage. Capen v. Garrison, 193 Mo. 335, 32 S.W. 368; Buie v. White, 94 Mo. App. 367, 68 S.W. 161; 28 C.J., p. 1136, sec. 225; In re Taylor Estate, 5 S.W. (2d) 461; Walk v. Hartford, 142 Mo. App. l.c. 398; In re Lee, 182 Fed. 579; Nichols v. Waukesha Canning Co., 195 Fed. 807: In re Keisker's Estate, 168 S.W. (2d) 96; In re Farmers' Exchange Bank of Gallatin, 37 S.W. (2d) 926; Linville v. Ripley, 173 S.W. (2d) 687. (4) The note and deed of trust are void because the guardian and curator failed to comply with Section 482 of the Revised Statutes for 1939. (5) The note and deed of trust bearing date of May 29, 1939, being of the same date on which the petition was filed and an order granted by the probate court authorizing the guardian and curator to mortgage the estate of John T. Arnold to the Peoples Bank of Holcomb for $550, all appearing to be on the same date, which conclusively shows that the ten days' notice required by Section 606 of the R.S. of 1939 could not have been given and was not given, and the mortgage and note are each void and of no binding force and effect. Capen v. Garrison, 193 Mo. 335, 32 S.W. 368; Buie v. White, 94 Mo. App. 367, 68 S.W. 161; 28 C.J., pp. 224, 1136; In re Taylor Estate, 5 S.W. (2d) 461; Wall v. Hartford, 142 Mo. App. l.c. 389; In re Lee, 182 Fed. 579; Nichcols v. Waukesha Canning Co., 195 Fed. 807; In re Keiskers Estate, 168 S.W. (2d) 96; In re Farmers' Exchange Bank of Gallatin, 37 S.W. (2d) 936; Linville v. Ripley, 173 S.W. (2d) 687.

Elbert L. Ford and Arthur U. Goodman, Jr., for defendants-appellants.

(1) Parol evidence is admissible to establish the contents of a lost or destroyed court record. The evidence was undisputed that the petition in question was duly filed and a written order made thereon. The court should have found as a fact that the petition was filed and the order made. Davis v. Montgomery, 205 Mo. 271, 103 S.W. 979; Barnes v. Imhoff, 254 Mo. 217, 162 S.W. 152; Parry v. Walser, 57 Mo. 169; Rice v. McElhannon, 48 Mo. 225; 53 C.J., p. 640, sec. 61. (2) Plaintiffs are not entitled to cancellation of either the note or deed of trust unless and until they re-pay to the Lawrence Estate the face amount of the note plus interest. Shanklin v. Ward, 291 Mo. 1, 236 S.W. 64; Davidson v. Gould, 187 S.W. 591; Githens v. Butler County, 350 Mo. 295, 165 S.W. (2d) 650; Berry v. Stigall, 253 Mo. 690, 162 S.W. 126; McFaddin v. Simms, 273 S.W. 1050, 309 Mo. 312; Fry v. Piersol, 166 Mo. 439, 66 S.W. 171. (3) "He who seeks equity must do equity." Ebel v. Roller, 21 S.W. (2d) 214; Milan Bank v. Richmond, 280 Mo. 30, 217 S.W. 74; First Methodist Church v. Berryman, 303 Mo. 475, 261 S.W. 73; Taylor v. Short, 107 Mo. 384, 17 S.W. 970; Robinson v. Siple, 129 Mo. 208, 31 S.W. 788; Wood v. K.C. Home Tel. Co., 233 Mo. 537, 123 S.W. 6; Thiemann v. Heinze, 120 Mo. 630, 25 S.W. 533; Davidson v. Gould, 187 S.W. 591; Greenstreet v. Walsch, 189 Mo. App. 553, 176 S.W. 1062; 9 C.J., pp. 1198, 1199, 1207; 21 C.J., p. 172. (4) All costs of the case should have been taxed against plaintiffs, since defendants were entitled to and were adjudged and decreed to have a lien for the full amount involved. Sec. 1406, R.S. 1939. (5) In any event the defendants are entitled to an equitable lien upon the real estate of John T. Arnold described in the pleadings. Netherton v. Farmers' Exchange Bank, 63 S.W. (2d) 156, 228 Mo. App. 296; Scheer v. Trust Co. of St. Louis, 49 S.W. (2d) 135, 330 Mo. 149; Baker v. Farmers Bank of Conway, 279 S.W. 428, 220 Mo. App. 85; Berry v. Stigall, 253 Mo. 690, 162 S.W. 126.

DALTON, C.

Action to set aside and cancel a note for $1,000 and the deed of trust securing it, with a cross action to impose an equitable lien on the described real estate for money borrowed, if the note and deed of trust be cancelled. The trial court cancelled the note and deed of trust, imposed an equitable lien and taxed costs (except the costs of plaintiffs' witnesses) against defendants. Both plaintiffs and defendants appealed.

On November 18, 1939, John T. Arnold, a person of unsound mind, was the owner of 30 acres of described real estate in Dunklin County and D.A. Snider was his duly appointed, qualified and acting guardian and curator. Snider was also the duly appointed, qualified and acting guardian of the person and curator of the estate of Roy A. Lawrence, a person of unsound mind. Both Arnold and Lawrence were disabled veterans of World War I and their estates were pending in the Probate Court of Dunklin County. On the date mentioned, Snider as guardian and curator of the estate of Arnold borrowed from himself, as guardian and curator of the estate of Lawrence, the sum of one thousand ($1,000) dollars. It is admitted (in the agreed statement of facts) that Snider "received said $1,000 as guardian and curator of Arnold and deposited it to the credit of himself in the bank as guardian of Arnold; and (that) he thereafter included same in his settlements with the Probate Court of Dunklin County." When the loan was made, John T. Arnold and Hazel Arnold, his wife, and D.A. Snider, as guardian and curator of Arnold joined in executing (in favor of D.A. Snider, as guardian and curator of the estate of Lawrence) the note and deed of trust now sought to be set aside.

In the petition plaintiffs charged that the note and deed of trust were void "because each was executed ... without first filing a petition and procuring an order from the Probate Court ... authorizing him, the said D.A. Snider, guardian and curator ... to borrow said sum of money and to execute said note and deed of trust securing the same."

Defendants' answer and cross petition alleged that a petition was filed and an order made authorizing the estate of Lawrence to loan, and the estate of Arnold to borrow, the said $1,000; that the estate of Lawrence did pay over to the estate of Arnold the sum of $1,000; that said amount was duly and...