Rannells v. Isgrigg
| Decision Date | 18 November 1889 |
| Citation | 12 S.W. 343,99 Mo. 19 |
| Parties | Rannells, Plaintiff in Error, v. Isgrigg |
| Court | Missouri Supreme Court |
Error to Saline Circuit Court. -- Hon. John P. Strother, Judge.
Reversed and remanded.
Boyd & Sebree for plaintiff in error.
(1) The plaintiff is entitled to dower in all lands of which Robt. M Renick was seized of an estate of inheritance to the use of Charles S. Rannells. R. S., 1879, sec. 2186. (2) The land was held by Robt. M. Renick as curator of Charles S. Rannells. There were no debts of the estate at the time the land was purchased, nor does the record disclose any debts, until the application to sell the land was made more than two years after the purchase of the land. The guardian did not hold the land for the benefit or use of creditors, for there were none; of necessity, therefore, he must have held it to the use of Charles S. Rannells. (3) The land was purchased with notes belonging to Charles S. Rannells, and the guardian therefore, held the land as trustee for the use of Rannells. Perry on Trusts, sec. 127; 2 Pomeroy's Eq. Jur., sec 1049; 1 Pomeroy's Eq. Jur., sec. 422; White v. Drew, 42 Mo. 561; Bangert v. Bangert, 13 Mo.App. 144; Reid v. Fitch, 11 Barb. 399; Johnson v. Dougherty, 18 N.J.Eq. 406; Hill on Trustees, 912; Gray v. Turley, 8 Wes. Rep. [Ind.] 874. (4) The seizin of Renick was of such a character, that, had his ward, Rannells, died before Renick sold the land, the title would have vested in the issue of plaintiff as heirs of Rannells, and not in his personal representative. When this is the state of the title the widow is entitled to dower. 1 Wash, Real Prop., p. 154, Tiedeman, Real Prop., sec. 116. (5) The county court and the guardian treated the land as the real estate of Charles S. Rannells, and the defendant's grantors being parties to the record, and the defendant, claiming title by virtue thereof, is estopped to deny the interest of Rannells in the land as shown by the record. Wilcoxson v. Osborne, 77 Mo. 621; Hasenritter v. Kirchhoffer, 79 Mo. 239; Stoutimore v. Clark, 70 Mo. 471. (6) The act of the plaintiff and her husband joining in the guardian's deed was a nullity, and the plaintiff's dower was not relinquished thereby. Rannells v. Gerner, 80 Mo. 474.
Davis & Wingfield and Wm. H. Letcher for defendant in error.
(1) The lands were held by Robert M. Renick by virtue of a sheriff's deed of foreclosure, which described him as "curator of Charles S. Rannells," but the evidence tended to show that the lands were bought with notes, which were personal assets in his hands for the payment of debts, so that, if said Renick held said lands to any use, it was to the use of the creditors, and not Rannells. The evidence and admissions of plaintiff clearly show that when Rannells was placed under guardianship he was deeply indebted. If not how did he ever become indebted? He could not incur debts after that time, and yet every step in the proceedings concerning this land shows that it was being sold to pay debts, and the petition under which it was last sold, and under which defendant's grantors bought, sets forth debts of over ten thousand dollars, and refers to other "old debts" which had been paid with borrowed money. Hogan's Heirs v. Welcker, 14 Mo. 177; Wilkerson v. Allen, 67 Mo. 502. (2) It will be presumed in this case that the court, sitting as a jury, was guided by correct principles of law. No instructions were asked or given on either side, therefore the finding must be upheld, there being substantial evidence tending to prove the facts set up in the answer. Harrington v. Minor, 80 Mo. 270; Tyler v. Larrimore, 19 Mo.App. 445; Ford v. City of Cameron, 19 Mo.App. 467, and cases there cited. (3) The motion to strike out part of the defendant's amended answer was properly overruled. The portion of the answer sought to be stricken out states a good defense to plaintiff's action. Hogan's Heirs v. Welcker, 14 Mo. 177; Wilkerson v. Allen, 67 Mo. 502. (4) The portion sought to be stricken out is included in brackets in the abstract of plaintiff in error. And, if the court did commit error in overruling said motion, that error was waived by plaintiff when she filed her replication replying to the whole of defendant's answer. Said motion was aimed at the whole of defendant's answer except a general denial, and therefore was equivalent to a demurrer. Austin v. Loring, 63 Mo. 19; Highley v. Noell, 51 Mo. 145; Ware v. Johnson, 55 Mo. 500. (5) Renick, having bought the lands in dispute with money or proceeds of sale notes of St. Louis county lands, was guilty of a conversion of the trust funds for which he and his securities were liable, and Rannells being insane was utterly incompetent to elect to take the lands thus purchased, nor could the county court elect for him, no power being in that court for any such purpose. No court could elect for him, except a court specially vested with the power or possessing chancery powers. Kennedy v. Johnson, 65 Pa. St. 451; Crozier's Appeal, 90 Pa. St. 384; Story's Eq. Plead., sec. 70, n. 1; Story's Eq. Jur., secs. 1364, 1336; Welch v. Sackett, 12 Wis. 270. (6) The words "curator of Charles S. Rannells," in the deed from the sheriff to Renick, did not have the effect to pass the title to Renick as curator. He could not hold the lands in that character. Wilkerson v. Allen, 67 Mo. 510. (7) The doctrine of estoppel has no application in this case. Foster v. Dwinell, 1 Am. Law Reg., pp. 604, 612, and notes. Tyler on Infancy, pp. 299, 612; 1 Wash. Real. Prop., pp. 193, 194. (8) The fact that the county court, of St. Louis county, may have approved of Renick's act in the purchase of the land could not give that purchase any validity, either for or against the estate of Rannells. The duties of such guardians are plainly prescribed by statute, and the county court being a court of limited jurisdiction could neither vary nor enlarge them, and no act or order of that court could operate as a ratification of an act which was in violation of law. R. S. Mo. 1879, secs. 5806-5810.
OPINION
-- Plaintiff, as the widow of Charles S. Rannells, brought her action for dower in the northeast quarter of section 22, township 50, range 21, in Saline county.
Formal proof being made of plaintiff's marriage and widowhood, the following agreed statement of facts, as well as evidence additional thereto, was introduced by plaintiff:
It was then admitted and agreed upon by both parties that, on the eleventh day of June, 1859, Vincent Marmaduke was the owner of the land described in the petition, and that on said day the said Marmaduke sold and conveyed the same, together with other lands, by warranty deed, to one E. Smith Clarkson; that the consideration for such purchase was fifteen thousand, nine hundred and sixty dollars, for which such purchase money Clarkson executed to said Marmaduke his several promissory notes; one for thirty-nine hundred and sixty dollars, and one for three thousand dollars, upon both of which Charles S. Rannells was surety, and three other notes for three thousand dollars each, without personal security. That, for the purpose of securing the payment of all said notes, said Clarkson and his wife executed and delivered to said Vincent Marmaduke a mortgage on the lands described in the petition with other lands. That, in the year 1865, the executors of Meredith M. Marmaduke, deceased, were the owners of all said notes and mortgage. That in 1865 the said executors recovered a judgment in the St. Louis circuit court against Charles S. Rannells on the two notes on which he was surety, which judgment amounted to about nine thousand dollars. That in 1865 said executors instituted suit in the Saline circuit court against said Clarkson and wife, to foreclose said mortgage as to the three three-thousand dollar notes, which were without personal security, and in October, 1866, judgment was rendered foreclosing said mortgage as to said three notes, said judgment being for the sum of fourteen thousand, one hundred dollars.
That in March, 1866, said Charles S. Rannells was duly adjudged by the county court of St. Louis county, Missouri, to be incompetent and incapable of managing his own affairs, and one Robert M. Renick was duly appointed by said court as guardian of the person and estate of said Charles S Rannells; and said Renick duly qualified as such guardian and entered upon the discharge of his duties as such; and that said Rannells remained incapable of managing his affairs, and said Renick continued to act as such guardian from that time until the death of said Rannells, which occurred in 1877 or 1878. That, on the eighteenth day of February, 1867, the said Renick, as such guardian, purchased of said executors of said Meredith M. Marmaduke, deceased, the said judgment of foreclosure of the Clarkson mortgage aforesaid, and paid therefor in notes belonging to said estate of said Charles S. Rannells, which said notes were the proceeds of sales of land in St. Louis county, which belonged to said estate of Charles S. Rannells, the sum of fourteen thousand, four hundred and sixty-three and sixteen hundredths-dollars; and said judgment was there and then assigned and transferred by said executors to said Renick, as such guardian, by an instrument of writing, in which said Renick is described as guardian of the person and estate of Charles S. Rannells. And afterwards, in July, 1867, the said Renick, in his first annual settlement as such guardian, reported said purchase of said judgment, and the amount paid therefor, to the said county court of St. Louis county, and claimed as a credit against said estate of said Rannells the said fourteen thousand, four hundred and sixty-three and sixteen hundredths-dollars, which he had...
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