Robert v. Casey

• Decision Date: 31 October 1857
• Citation: 25 Mo. 584
• Parties: ROBERT AND WIFE, Appellants, v. CASEY, Respondent.
• Court: Missouri Supreme Court

25 Mo. 584

ROBERT AND WIFE, Appellants,

v.CASEY, Respondent.

Supreme Court of Missouri.

October Term, 1857.

1. The seventh section of the “Act concerning minors, orphans and guardians,” approved February 8th, 1825 (R. C. 1825, p. 417), conferred upon the Probate Courts power to authorize guardians of minors to sell real estate of such minors at private sale to complete their education.

2. Upon petition of a guardian, under said act, to a Probate Court, for leave to sell real estate of his ward, the court ordered, May 4th, 1835, that the guardian, after an appraisal by three disinterested householders, should sell the lot at private sale for not less than three-fourths of its appraised value, and should make report of his proceedings at the next term of the court. After the next term of the court, the guardian made a private sale of the lot for more than the sum at which the lot had been appraised, and executed a deed, dated October 3d, 1835, to the purchaser; but he made no report whatever to the court of the sale, or of his proceedings under the order. Held, that the failure of the guardian to make report of the sale and proceedings under the order would not invalidate the title of the purchaser, the said act of February 8th, 1825, not requiring an approval of such sale by the Probate Court; nor would the fact, that the sale was made subsequent to the term at which the guardian was directed to report his proceedings under the order, invalidate the sale.

3. The original affidavit of the appraisers, and their written appraisement, and the deed of the guardian, though never reported to the court, are admissible in evidence to show the proceedings of the guardian under the order of the Probate Court.

Appeal from St. Louis Land Court.

The facts sufficiently appear in the opinion of the court.

Whittlesey, for appellants.

I. The records of the County Court, and the approval by said court of the proceedings of the guardian under the order, are the only competent evidence to show that the order of court has been complied with, and parol testimony cannot be resorted to until it is shown that record testimony has been lost. In courts of limited jurisdiction proceeding contrary to the course of the common law, the records are the proper evidence to show that the requisites of the law have been complied with. (Vallé v. Fleming, 19 Mo. 454; Medlin v. Pratte, 8 Mo. 235; Milan v. Pemberton, 12 Mo. 598; Danzey v. Swinney, 7 Texas, 617; Burnett v. Higgins, 4 Dana, 565, 567; Griffith v. Dicken, 4 Dana, 561; Planters' Bank v. Johnson, 7 Sm. & M. 449; 23 Mo. 30; 7 J. R. 19; 6 J. R. 9.)

II. The sale was void, and the deed passed no title, because the court did not approve of the same, no return being made by the guardian as required by the order. It is admitted that, independent of statutes, sales made under orders of courts of general jurisdiction, if regular, and made in proper time, pass the title, without any return under the order. But in this case the statute and the order of court both required that return and the approval of the sale when made. The County Court was not a common law court, and had only limited, as distinguished from general, jurisdiction; it was a creature of statute entirely. At common law, the real estate of an infant cannot be sold, nor will a court of chancery do it, although it may be for the benefit of the infant. (Calvert v. Godfrey, 6 Beav. 97; Garmston v. Gaunt, 9 Law Jurist, 78.) The authority of the County Court and its process are regulated by the statute. An appeal lies from the judgment of the court confirming a sale by an administrator (Speck v. Wohlien, 22 Mo. 310); and appeals lie, in the cases of guardians and wards, as in other cases cognizable in the Probate Courts. If no report is necessary, and the court is not required to confirm that report to make the sale valid, and no report is made, how can an appeal be taken? But if the statute did not require this report, the County Court justly exercised its powers in requiring the report, so that the proceedings might appear of record showing how the minor's title was divested; and what must appear of record may not be proved by parol. (See cases cited above; also, Jenner v. Joliffe, 6 Johns. 9; Brush v. Taggart, 7 Johns. 19; 4 Dana, 565.) The court chose to retain authority over its own process, and to know whether the sale was for the benefit of the infant, who finds no record of a sale, and might well suppose that the power given by the order had not been executed.

III. The court had authority over its own process to order the report to be made at the next term; and as the sale was made after the process was returnable, the authority to sell had ceased, and the sale and deed were, consequently, void. The powers of the Probate Court were transferred to the County Court by act of 1827. (See 2 Terr. Laws, p. 127.) By the acts of 1825, p. 272, §13, the terms of the County Courts were to be four in each year, and to be held on the first Mondays of February, May, August and November. The order in this case was made at the May term, 1835, and the report was returnable at the August term, and the sale was made in October (as appears from the deed), nearly two months after the return term of that order. The power had expired, and the sale under it was as void as a sheriff's levy and sale under an expired execution. (Vail v. Livingston, 4 Johns. 450; Devoe v. Elliot, 2 Caines, 143; Jarvis v. Russick, 12 Mo. 63, 67.)

IV. If the power was good at the date of the sale in October, 1835, the deed was void because made in the name of the guardian, instead of his ward. (See authorities in notes to Elwell v. Shaw, 1 Am. L. Cas. 424; Griswold v. Bigelow, 6 Conn. 258; Lockwood v. Sturdevant, 6 Conn. 373, 387.)

____________, for respondent.

I. It was contended in a written brief filed at a former term by Mr. Reber (now judge of St. Louis Court of Common Pleas), that the act of 1825 (R. C. 1825, p. 417) did not require the guardian to report his sale to the court; that if the court had the implied power to make such an order, a failure of the guardian to execute it could not defeat the title of an honest purchaser who had no control over him. The rule in such case is, where the law requires an act to be done in order to pass the title, there it must be performed or the sale is null. The law requires an administrator's sale to be approved by the court. (19 Mo. 461.) If not approved, it is void. So also no title passes by an administrator's sale, unless he execute a deed. (18 Mo. 561.) So also the sheriff's return is indispensable to the title of a tenant by elegit. (1 Barn. & Ald. 40.) But an irregularity, in a matter which is not an essential link in the chain of facts which pass title, does not vitiate in a collateral proceeding; as, for instance, a sheriff's failure to return his execution, where he has otherwise conformed to the law and executed a deed to the purchaser. And yet, where the sheriff's return is the title (as in the case of an elegit) there is must be shown. (See Lessee of Stall v. McAlester, 9 Ohio, 19; Wheaton v. Sexton's Lessee, 4 Wheat. 503; Palmer v. Oakley, 2 Dougl. 495.) In all the cases where a report of sale or confirmation is held necessary, it is on account of a statute. (Young v. Keogh, 11 Ill. 642; Rea v. McCachron, 13 Wend. 465; Lessee of Curtis v. Norton, 1 Ohio, 136; 17 Mo. 71, 442.) No confirmation of the sale is required either by the law or by the order under which the sale was made. The duty of the purchaser was performed when he paid the purchase money and received his deed. Every thing was regularly done up to that period. The land was sold for more than the appraised value; and the purchaser and those claiming under him have held under the sale for more than twenty years.

NAPTON, Judge, delivered the opinion of the court.

The title of the defendant in this case was derived from a sale by a guardian made in pursuance of an order of the County Court of St. Louis county. The law under which the court acted is the seventh section of the act concerning minors, orphans and guardians in the Revised Code of 1825. (R. C. 1825, p. 417.) That section is as follows: “Sec. 7. Be it further enacted, that it shall be lawful for any guardian of any minor, who is committed to his or her care for tuition, and who has lands or tenements, for the purpose of education, to apply to the Court of Probate of the proper county for leave to sell the said lands or tenements, or such part thereof as may be necessary to complete the education of such minor, or to mortgage the same for any sum not less than twothirds of the real value, as the court shall think proper.” The remainder of the section, and some subsequent provisions, relate to the duties of the court and of the guardian concerning settlements of the guardian's accounts, and the application of the money to the education of the minor. Nothing more is said in the act concerning the authority to sell, or the manner in which the authority shall be executed.

The agreed case shows that the order for Turpin to sell the land of his daughter and ward was made at the May term of the County Court; that the appraisement was made a few days after the date of the order; and that the deed was executed on the 3d of October of the same year. The objections to this title are, first, that the records of the court show no return whatever to the court by the guardian of any action by him under the order, and consequently the court never passed upon or sanctioned the sale, and no title vested until such approval: secondly, that the deed was made after the term of the court to which the guardian was directed to report, and that at this time his power and authority under the order had ceased; and, thirdly, that the...