McVey v. McVey

• Decision Date: 31 January 1873
• Parties: ABSOLEM MCVEY, Curator, &c., Appellant, v. MCVEY, PHILIPS and VEST, et al., Respondents.
• Court: Missouri Supreme Court

51 Mo. 406

ABSOLEM MCVEY, Curator, &c., Appellant,

v.MCVEY, PHILIPS and VEST, et al., Respondents.

Supreme Court of Missouri.

January Term, 1873.

Appeal from Moniteau Circuit Court.

Napton, for Appellant.

1. No appeal lies from the judgment of a County Court approving the sale by a Curator of his wards' lands. (See chapter 116 of General statutes, page 465, which contains the whole law on this point.) Section 50, page 473, allows appeals from a final settlement, but no appeal in any other matter. See also section 7, of chapter 137, General Statutes, 556; also section 2, of chapter 136, General Statutes, 550, neither of which gives the right in this case, nor does the administration law. (Kenrick vs. Cole, 46 Mo., 85; Boggs vs. Brooks, 45 Mo., 232; State ex. rel., Hixon vs. Lafayette county, 41 Mo., 39; St. Louis vs. Tiefel, 42 Mo., 590.)

2. The County Court had the power to order the sale at private or public sale. (See Section 22, Guardians and Curators, Rev. Laws Mo. 1845, page 551, under which this sale was made. See also in pari materia, Section 8, Guardians and Curators, Revised Laws, 1835, page 295, and Revision of Laws of Mo., 1825; R. C. 1855, 826, § 24; Gen. Stat., 1865, 460, § 28; Robert vs. Casey, 25 Mo., 585.)

3. This power of the County Court to order the sale of a minor's real estate at “private or public sale,” was not repealed by the amendatory act of 1851. (R. C. 1855, pp. 827 and 828, §§. 25-29, which are a transcript of the amendatory act of 1851.) There was no express or implied repeal. (St. Louis vs. Independent Insurance Company of Massachusetts, 47 Mo., 149; Deters vs. Renick, 37 Mo., 597; Vastine vs. Probate Court, 38 Mo., 529; State ex. rel., &c., vs. Macon County Court, 41 Mo., 453; St. Louis vs. Alexander, 23 Mo., 483. See title, Administration, Revision 1825, pp. 107, 109, 110, §§ 40, 44, 45 and 46; Revision 1835, pp. 52 and 53, Art. 3, §§ 13, 20 and 22; Revision 1845, pp. 86, 87, 88, Art. 3, §§ 25, 29, 32 and 34; Revision 1855, pp. 146-7, Art. 3, §§ 26, 30, 33 and 35.)

4. The objection that the certificate of appraisement is not signed is the merest technical quibble. The statute in this regard is merely directory, the object being to identify the appraisement as the work of the appraisers, and the appraisement being on the same paper with the affidavit signed and sworn to by the appraisers, constituted a certificate which was literally under their hands. In fact, all the requisitions of the statute were substantially complied with, and that was all that was necessary. (See opinion of Wagner, Chief Justice, overruling motion for a re-hearing in Strouse vs. Drennan, 41 Mo., 300.)

5. In this case, the Curatorship was still pending, and the matter of this sale was still pending as a part of the Curatorship, when application was made at the May term, 1869, of the County Court to approve the sale, and the County Court, notwithstanding the lapse of time after the sale, had jurisdicto act on the report and approve the sale.

6. The Circuit Court in hearing this case on the record, sit as a Court of Errors, and from its judgment of reversal, an appeal lies to this Court. (See Strouse vs. Drennan, 41 Mo., 289, and cases there cited.) Or, if it be assumed that the Circuit Court had no jurisdiction to hear the case, then its action, in overruling the motion to dismiss the appeal from the County Court, was a final judgment, from which a writ of error, or appeal, lies to this Court.

R. Hicks, for Respondent.

The County Court had no jurisdiction to appoint McVey Curator of the estate of said minors which they derived from their mother.

It is said in the case of Commissioners of Talladida vs. Thompson, 15 Alabama, 139, that it requires no citation of authorities, to show that the County Court is a court of special and limited jurisdiction, that its record must discover and disclose every fact necessary and essential to the validity of its orders and judgments.

Although the County Court had by law exclusive original jurisdiction of appointing and displacing guardians, orphans, minors, and persons of unsound minds, &c. yet a general jurisdiction over the subject matter, was not enough. The court could only have had it, in this case, by the existence of those preliminary facts that are specified in the statute. (Potwines Appeal, 31 Conn., 383; Bullymore vs. Cooper, 46 N. Y., 244; Small vs. Pennell, 31 Maine, 270; Overseers vs. Gullifer, 49 Maine, 360.)

The power to hear and determine is jurisdiction. (Fithian vs. Monks, 43 Mo., 502.) But before this power can be affirmed to exist in this case, the record must show the existence of the facts specified in some one of said sections, 6 or 7. (Sheldon vs. Newton. 3 Ohio St., 498; 12 Ohio, 273.)

And it is a fundamental rule that no court can obtain jurisdiction by the mere assertion of it, or by declaring that it has it. (McMinne vs. Whelan, 27 Cal., 314.)

And the doings of the County Court in this case were ineffectual, and a nullity, inasmuch as the court had no authority to commence. (Small vs. Pennell, 31 Maine, 270.)

The record and proceedings in this case, do not disclose such a state of facts as authorized the appointment of McVey, as Curator or guardian under the 2nd section of the act. Nor does the record disclose a state of facts, that authorized the court to appoint him “Curator” under the 6th section of the act.

The 7th section of the act provides, “Whenever the County Court shall be satisfied, that it will be for the advantage of minors to appoint a Curator of the estate, different from that of the guardian of the person, it shall be lawful to make such appointment for minors under the age of fourteen years, and to all those over that age, to make such choice.”

Now the record and proceedings do not disclose a state of facts, that authorized the court to appoint a Curator different from the guardian of the person, nor did the court make any such appointment. Under this section the court was not au thorized to appoint a “Curator” for part of the estate of said minors. It must have been for the whole of the estate of said minors, from whatever source derived.

The order of appointment would seem to indicate, that the court proceeded under the 6th section of the act. But the record fails to show that he was wasting and mismanaging the estate.

And, if the court had so found, there was no warrant in that section to appoint him Curator. Such an appointment would have been in direct violation of the statute. (Sawyer vs. Knowles, 33 Maine, 210.)

Before the court can in any case order the sale of real estate of minors for their education, it must have jurisdiction of the persons of the minors and their estate, but at the time the court appointed McVey Curator, it had no jurisdiction over either the persons or estate of said minors. The court could only have obtained jurisdiction over the persons and estates of said minors through a legally constituted guardian, one that had had the legal custody and control of their estate. The court had no authority to appoint, and never did appoint McVey guardian for said minors. (Maxsom's lessee vs. Sawyer, 12 Ohio, 207; Stewart vs. Morrison, 38 Miss., 417; Graham vs. Haughtalling, 1 Vroom, 552; Hall vs. Lay, 2 Ala., 529; Shanks vs. Seamond, 24 Iowa., 131.)

Nor did McVey under the first section of the act, ever give security as other guardians. The giving of the security in the manner required by the first section of the act, was the only way in which he could obtain the legal custody and control of said real estate, and become the guardian thereof. (McCarty vs. Rountree, 19 Mo., 345.)

Now when the 7th section speaks of appointing a curator different from the guardian of the person, such a guardian was intended as the court has jurisdiction over, and one that has the care, custody and control of both person and estate. (Graham vs. Haughtalling, 1 Vroom, 552; Penfield vs. Savage, 2 Conn., 386; Shanks vs. Seamonds, 24 Iowa, 131.)

And as McVey had not given bond under the first section, there was no guardian of the estate and the appointment as curator void. (Maxsom's lessee vs. Sawyer, 12 Ohio, 208.)

Before an appointment of a curator for the estate of the minors, under the 7th section, it was essential that there should have been a legal guardian of the estate and persons of the minors, and such appointee must have been a different person from the guardian of the persons and estate. (Sawyer vs. Knowles, 33 Maine, 210.)

A father as natural guardian is not appointed, it results to him by operation of law, and a guardian by nature is guardian of the person only and not of the estate. The County Court had no authority to appoint a guardian for a minor during the life-time of the father. (1 Halst. Digest, 507, 807, Opinion of Chancellor Williamson; Hall vs. Lay, 2 Ala., 529; Stewart vs. Morrison's Ex., 28 Miss., 418.)

The very language of the statute itself shows that the natural guardian, unless he had given security as other guardians under the statute, was not guardian of the estate of the minos or such a guardian as the court had any jurisdiction over.

But the petition, record and proceedings, do not disclose facts to authorize the court to make the order, without a statement that the father had not the ability to educate the minors the court had no jurisdiction to proceed; and it may be stated as undeniable, that if the father is living and of sufficient ability to educate his children, the child's property cannot be applied for that purpose. (Tyler on Infancy and Coverture, 289, and cases there cited.)

We are not in court in a collateral proceeding attacking the record We have been brought in to show cause why a report of sale, made thirteen years before the report was offered, shall not be confirmed. We ask the court to place itself in the situation the County Court was, &c.

Phillips & Vest, for Respondent.

I. No appeal lies to this Court from the judgment of the Circuit Court of Moniteau county disapproving the...