McKenzie v. Donnell

• Decision Date: 23 May 1899
• Docket Number: No. 8,314.,8,314.
• Citation: 52 S.W. 214,151 Mo. 431
• Parties: McKENZIE et al. v. DONNELL et al.
• Court: Missouri Supreme Court

52 S.W. 214

151 Mo. 431

McKENZIE et al. v. DONNELL et al.

No. 8,314.

Supreme Court of Missouri, Division No. 1.

May 23, 1899.

CANCELLATION OF INSTRUMENTS — INSANE PERSONS — PLEADING — CONCLUSIVENESS OF JUDGMENT — APPEAL — REVIEW.

1. Rulings of the trial court on demurrers may be reviewed, although no exceptions were reserved thereto.

2. When a demurrer is sustained as to one count of a petition, and overruled as to the second, plaintiff need not move for a new trial as to the first count, but may wait until the termination of the controversy.

3. Since the county court is vested with exclusive original jurisdiction of matters relating to the appointment of guardians for insane persons, by Const. 1865, art. 6, § 1, par. 23, a judgment of the county court declaring a ward restored to sanity, and discharging him from custody, cannot be collaterally attacked in a suit to cancel a trust deed executed by such person after his discharge.

4. Where plaintiffs, in their suit to cancel a deed on the ground that the grantor was insane, offered to return the consideration, and the case was tried on that theory, and they offered no objections to a referee's report charging them with the amount, but contested defendant's exceptions to the findings charging them with rent, they cannot, after defendant's motion for a new trial and in arrest has been overruled, raise for the first time the objection that they ought not to be charged with the consideration because the grantor derived no benefit from it.

5. A deed executed by an insane person not in ward can be canceled only on a return or tender of the consideration received.

6. Where a deed is canceled and the property ordered returned on the restoration of the consideration paid, defendant cannot be allowed attorney's fees for services to be performed in a tax-contest case pending in the supreme court.

7. A finding of the trial court on conflicting evidence as to the rental value of property in controversy will not be disturbed.

Error to circuit court, Jackson county; John W. Henry, Judge.

Action by Ella McKenzie and others against Catherine E. Donnell and others. From an order overruling their motion to modify the decree, plaintiffs bring error. Modified and affirmed.

Action to set aside a deed of trust upon realty, and for an accounting. The amended petition in this case is in two counts. The first count alleges, substantially: That the plaintiffs are the children and grandchildren of Jedediah E. McKenzie and Mary E. McKenzie, who died before her husband. That at the May term, 1869, of the county court of Jackson county, Jedediah was properly and legally adjudged insane, and Robert C. White was appointed his guardian. That at the February term, 1870, of said court, White resigned as such guardian, and Byron E. Dye was appointed as his successor. That the records of said county court show that Dye, in writing, informed the court that Jedediah had been restored to his right mind, and asking for an inquiry into the fact by a jury, which was done on the same day, resulting in the jury finding that Jedediah had been restored to his right mind, and that he had become, and was then, competent to transact his own business. The information had underwritten an affidavit of Dye stating that the statement or information was true, according to the best of his belief, and was sworn to by Dye before the clerk of the county court on the 9th day of December, 1870, three days after the verdict of the jury. That accordingly Dye was discharged from his guardianship, and Jedediah was discharged from care and custody. That afterwards, at the August term, 1875, J. J. Davenport informed the county court that he was a partner of Jedediah, and that he was a person of unsound mind, and incapable of managing his own affairs; that, upon inquiry before a jury, Jedediah was adjudged insane, and Patterson Stewart was appointed guardian of his person and estate, and the guardian, qualified as such, filed an inventory of his estate on the 21st of October, 1875, and afterwards, on the 6th of September, 1876, the guardian made final settlement, and was discharged. That on the 16th of March, 1891, the county court ordered all the papers and records of the court relating to the estate of Jedediah to be transferred to the probate court of Jackson county, and that the clerk of the county court transmitted a complete transcript of such record entries, but certified that the original papers could not be found in his office. That thereupon his wife filed in the probate court a petition stating that Jedediah was a person of unsound mind, and had been so, and likewise incapable of managing his affairs since 1869, when he was adjudged insane, and also that he had been so insane and incapable since the adjudication in 1875; that since 1875 he had never been adjudged sane, and as a matter of fact had been insane since 1869; that a vacancy in the guardianship existed, which she prayed might be filled. That the probate court granted the prayer of the petition, and appointed Benjamin Warner his guardian, who, after duly qualifying, filed a motion in the probate court to set aside the adjudication of the county court of December 6, 1870, declaring Jedediah restored to sanity, specifying two grounds for the motion: (1) That the information, in writing, of Dye to the county court, of Jedediah's restored sanity, did not show that it was verified by oath or affirmation; and (2) that the record did not show that Jedediah had any notice of the proceeding, or any reason why he was not notified. That on March 15, 1875, as well as in 1869, Jedediah owned certain real estate in Jackson county (describing it). That on April 1, 1875, Jedediah "went through the form of executing a deed of trust on said real estate to Charles H. Vincent, trustee for Patterson Stewart, to secure said Stewart against loss as an indorser of a note signed by J. J. Davenport and Jedediah E. McKenzie, dated March 1, 1875, for three thousand ($3,000) dollars, for one year, at ten (10) per cent. interest," which was duly recorded in Jackson county, and which contained a power of sale in case the note was not paid. That Vincent refused to act as trustee, and the then sheriff of Jackson county was appointed as trustee in his stead, and he advertised the property for sale, at the request of Stewart, and sold it on February 20, 1877, to M. S. C. Donnell, for the sum of $2,105, but the trustee's deed was made to Catherine E. Donnell by direction of her husband. That Donnell immediately took possession of the property, and has held possession thereof ever since, and established a rock quarry on the property, from which he has taken a large quantity of rock. That thereafter, on the 29th of July, 1886, Donnell executed a deed of trust on the property to secure a note for $15,000, payable at three years, with 7 per cent. interest, to O. H. Dean, trustee for Israel B. Mason. That since the institution of the suit the defendant the Citizens' National Bank of Kansas City has acquired said note for $15,000, and said bank also claims to be the owner of another note, for $500, secured by a second deed of trust on the property, given by Donnell to G. F. Ballingal. The first count then prays for a cancellation of the trustee's deed from Bailey, sheriff, to Catherine E. Donnell, and of the two deeds of trust put on the property by the Donnells; that the title to the property be vested in plaintiffs, as the children and grandchildren of Jedediah, now deceased; that defendants be "debarred and estopped" from having or claiming any right or title thereto adverse to plaintiffs; and that the Donnells be decreed to account for the rents and profits, and also for the rock taken from the property; and for general relief. The second count of the petition states: The relationship of plaintiffs to Jedediah. His ownership of the property on April 1, 1875. His death on the 9th of October, 1892. The execution on April 1, 1875, of the deed of trust to secure Stewart as indorser on the note for $3,000. The fact that Vincent, the trustee in the deed of trust, never knew of its execution, and refused to act as trustee; informing Stewart, when he asked him to act under it, that he had been informed and believed that Jedediah was insane. The substitution on January 16, 1877, of the sheriff, Bailey, as trustee, in place of Vincent, by the circuit court, upon the ex parte application of Stewart, who knew of the insanity of Jedediah, but did not inform the circuit court of it. That from August 7, 1875, to September 5, 1876, Stewart "was the acting de facto guardian of the person and estate of said McKenzie. That at the date of said application said McKenzie had no guardian. That no notice of any kind was given to said McKenzie of said application." That Bailey, as substituted trustee, sold the property on February 20, 1877, to M. S. C. Donnell, but made the deed to Catherine E. Donnell by his direction. The execution of the deed of trust by Donnell, to secure the $15,000 note, to Dean, trustee for Mason, dated July 29, 1886. That when this deed of trust was executed "said Jedediah E. McKenzie stood adjudged to be a person of unsound mind, and incapable of managing his affairs, by a judgment of the county court of Jackson county, Missouri, which judgment had been duly given and made by the said county court long prior to that time, which said judgment was duly spread upon the records of said court at the date of the execution of said deed of trust. That at said date said trustee for Israel B. Mason, as well as said Israel B. Mason, had actual knowledge of all the facts in regard to the insanity of said Jedediah E. McKenzie, as they are hereinbefore and hereinafter alleged." That at the time of the execution of the Stewart deed of trust, and long prior thereto, and up to his death, Jedediah "did not possess a sane mind. That at all of the dates aforesaid he was an insane person and a...