Moore v. Davis

• Decision Date: 30 April 1885
• Citation: 85 Mo. 464
• Parties: MOORE et al. v. DAVIS et al., Appellants.
• Court: Missouri Supreme Court

85 Mo. 464

MOORE et al.

v.DAVIS et al., Appellants.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Cape Girardeau Circuit Court.--HON. JOHN D. FOSTER, Judge.

REVERSED.

Wilson Cramer for appellants.

(1) There is nothing to show, or tending to show, any fraud in obtaining the order of sale or in any of the proceedings relating to the sale of the land, nor is there a pretense that Edwards, the purchaser, was guilty or cognizant of any fraud in the matter. (2) The judgment of the county court in the matter of selling the estate is conclusive. G. S., 1865, 234. And the proceedings show a strict compliance with the statute. (3) The minute book of the probate court, offered in evidence, was required by law to be kept and was competent to show the approval of sale, which also appeared by indorsement on the report itself. (4) Even conceding the sale made by the guardian to be of no effect, and that the title did not pass, yet the evidence shows that the purchaser paid his bid, two thousand dollars and interest, and that the guardian received and used the money for the benefit of his ward and family. These facts constitute a good defence in equity. Henry v. McKerlie, 78 Mo. 416.

R. B. Oliver for respondent.

(1) The sale made by the guardian was absolutely void, because of disregard of the statutory requirements relating to such sales. There was no such notice and description of the property to be sold as is contemplated by the statute. G. S., 1865, p. 236, sec. 24. (2) The report of the sale as made by the guardian was not approved by the county court, and there was no divestiture of title. The county court was a court of record and its acts can be known only by its record proper. English v. Smock, 34 Ind. 115; Adams v. Tiernan, 5 Dana 394; Frees v. Ford, 6 N. Y. 176; Straus v. Drennon, 41 Mo. 589; Henry v. McKerlie, 78 Mo. 416; Mealin v. Platte Co., 8 Mo. 235. (3) The charge of fraud made in the replication is borne out by the evidence. Turner v. Turner, 44 Mo. 535; Armstrong v. Winfrey, 61 Mo. 354; Kenrick v. Cole, 61 Mo. 570. (4) The cause was tried by the court without a jury, and without any declarations of law and the finding of the trial court should not be disturbed. Snyder v. Burnham, 77 Mo. 52; Chapman v. McIlrath, 77 Mo. 38: Hodges v. Black, 76 Mo. 537.

PER CURIAM.

This was a suit in the nature of an action of ejectment to recover the possession of certain land, and the petition is in the ordinary form. The defendants, for answer, denied the allegations of the petition, and as a further defence, set up an equitable claim to the title of said land, in which it is alleged that Lucy Moore is the only heir of Thomas Walker, deceased, who, at one time, owned the real estate sued for, having purchased from Benedict Knott; that afterwards said Walker became of unsound mind, and Charles Welling was appointed his guardian, and who presented to the county court a petition in writing for the sale of Walker's real estate to pay debts and to maintain his ward and the ward's daughter; that thereupon an order of sale was entered; that the guardian had said real estate appraised, advertised, and sold it to James F. Edwards for $2,000. That at the term of the county court succeeding that at which the sale was made, the guardian made a report thereof, which was marked and endorsed on its back, approved by the clerk; that such approval was entered upon the minutes of the court, but, by mistake and oversight, the clerk failed to make a formal entry of approval on the record proper; that the purchaser, Edwards, took possession and made lasting and valuable improvements of the value of $2,500, and afterwards sold the land to John F. Strong for $2,500, who afterwards sold to Greer W. Davis for $2,500; that Davis died and willed it to his widow, Elizabeth Davis, who conveyed it to Frank A. Davis for $2,300, who re-conveyed to Elizabeth Davis. Defendants pray judgment, and pray the court to direct the probate court to enter an order of approval of sale nunc pro tunc, and pray that if the deed be held void, that an account be taken of improvements made, etc., and that the same and the purchase price be decreed a lien on the premises, etc., and then a prayer for further relief.

The reply denied all new matter not directly admitted; charged that the order of sale was obtained by fraud; denied the approval of the sale by the county court, and prayed judgment as in their petition.

After the close of plaintiff's evidence, which was a deed from Knott to Thomas H. Walker, and evidence of value of improvements and rental value, the defendants offered from the records, the guardian, Welling's, petition for sale of his ward's real estate, duly verified by his affidavit; then the order of sale; then the renewal of the order of sale; then a copy of his advertisement of sale; the affidavit of the appraisers; their appraisement; then the report of sale, with the guardian's affidavit; then the indorsement on the back of the report in these words: “Report of sale of Charles Welling, Guardian of Thomas H. Walker, insane person. Four hundred and sixty-eight and nine. Filed and approved September 3, 1867. Wm. Flentage, clerk, per R. H. Querry.”

Defendants then read in evidence the following entry in the minute book of the clerk:

(

Charles Welling, guardian of

(

Thomas Walker. Report of

“468 and 69.

(

(

sale of real estate ordered,

(

approved.”

Then the following from the records:

“GUARDIANSHIP, THOMAS H. WALKER. REPORT OF SALE:

Now comes ...