Scott v. Royston

• Decision Date: 27 November 1909
• Citation: 123 S.W. 454
• Parties: SCOTT et al. v. ROYSTON et al.
• Court: Missouri Supreme Court

123 S.W. 454

SCOTT et al. v. ROYSTON et al.

Supreme Court of Missouri, Division No. 1.

November 27, 1909.

1. PARTITION (§ 12) — HOMESTEAD ON DEATH OF OWNER — MINORITY OF CHILDREN.

The homestead vests on the death of the owner in his widow and his infant children, and partition does not lie until the youngest child becomes of age.

2. EXECUTORS AND ADMINISTRATORS (§ 332) — SALE OF REAL ESTATE — PETITION — "DEBTS."

A petition by the widow and adult children and the guardian of minor children, which alleges decedent's death, his indebtedness, the widow's inability to manage, and pay the taxes on, the homestead, and which prays for the sale of a part of the homestead to pay the indebtedness, etc., is a petition for the sale of real estate to pay debts of decedent under Rev. St. 1879, §§ 143-146 (Rev. St. 1899, §§ 143-146 [Ann. St. 1906, pp. 383, 384]), authorizing the sale of land to pay debts.

3. COURTS (§ 472) — CONCURRENT JURISDICTION — PROBATE MATTERS.

Under Const. art. 6, §§ 34, 35 (Ann. St. 1906, pp. 238, 239), providing for the establishment of a probate court in every county, with jurisdiction over all probate business, etc., and Rev. St. 1879, c. 1, substantially re-enacted in Rev. St. 1899, c. 1, §§ 1-322 (Ann. St. 1906, pp. 337-456), relating to the jurisdiction of the probate court, that court has exclusive jurisdiction in all cases arising under the general law relating to the administration of estates and to all matters pretaining to probate business, and has exclusive jurisdiction to order a sale of a decedent's real estate to pay debts, and the circuit court is without jurisdiction to determine an application for such a sale.

4. EXECUTORS AND ADMINISTRATORS (§ 388) — SALE OF LAND FOR PAYMENT OF DEBTS — VOID PROCEEDINGS — TITLE OF PURCHASER.

The order of the circuit court for such a sale is void, and the purchaser at the sale acquires no title.

5. JUDGMENT (§ 492) — COLLATERAL ATTACK — UNAUTHORIZED APPEARANCE.

A judgment cannot be collaterally attacked by a party on the ground that an appearance of an attorney for him was unauthorized.

6. INFANTS (§ 70) — RIGHT TO SUE.

An infant cannot of his own volition institute suits; but the suits must be brought by his guardian.

7. GUARDIAN AND WARD (§ 80) — SALE OF WARD'S LANDS — FORM OF PROCEEDING — ACTION.

Rev. St. 1879, § 3469 (Rev. St. 1899, § 550 [Ann. St. 1906, p. 587]), providing that suits by infants may be commenced and prosecuted by the guardian, gives to a general guardian authority to institute a suit for the sale of the infant's lands.

8. GUARDIAN AND WARD (§ 116) — INFANTS (§ 84) — APPEARANCE BY GUARDIAN OR GUARDIAN AD LITEM.

Under Rev. St. 1899, §§ 558, 560, 575, 585 (Ann. St. 1906, pp. 589, 590, 601, 609), relating to actions against infants, neither the general guardian nor a guardian ad litem may enter the appearance of an infant ward as defendant in any ordinary suit against an infant.

9. GUARDIAN AND WARD (§ 116) — INFANTS (§ 84) — APPEARANCE BY GUARDIAN OR GUARDIAN AD LITEM — PARTITION.

Under Rev. St. 1899, §§ 550-560 (Ann. St. 1906, pp. 587-590), prescribing the manner in which suits against infants may be commenced, and providing that, after the commencement of a suit against an infant and the service of process on him, the suit shall not be prosecuted further until a guardian is appointed, embodied in Code Civ. Proc. entitled, "Procedure By and Against Infants," applies to all actions by or against infants, and in partition against infants the general guardian or the guardian ad litem has no authority to enter the appearance of the infants therein, notwithstanding section 4380 (Ann. St. 1906, p. 2414), authorizing guardians to perform any matter respecting the division of the ward's lands which may be necessary, etc., as it does not refer to commencement of actions, as section 4379 provides that all pleadings and proceedings in partition shall be had as in ordinary civil actions.

10. GUARDIAN AND WARD (§ 1) — NATURE OF OFFICE OF GUARDIAN — STATUTES.

Guardians and curators are creatures of the law, and are statutory officers of the court, and have no inherent powers, but only such as are prescribed by statute.

11. STATUTES (§ 206) — CONSTRUCTION — EFFECT TO ENTIRE STATUTE.

The court must, if possible, so construe a statute as to give force and effect to every section thereof.

12. STATUTES (§ 181) — CONSTRUCTION — CONSIDERATION OF CONSEQUENCES.

The court, in construing a statute, must adopt such a construction as will harmonize with reason and common sense, and must not so interpret the statute as to lead to a useless result.

13. QUIETING TITLE (§ 37) — DEFENSES — REFUNDMENT OF PRICE — PLEADING.

In a suit to determine title to land sold under a void order of the court, the question of the necessity of plaintiff refunding the price of the land will not be determined where not pleaded.

14. QUIETING TITLE (§ 14) — DEFENSES — CONDITIONS PRECEDENT.

Where plaintiffs, suing to determine title to land sold under a void order of sale, had not received any part of the price, they were entitled to relief without tendering the price.

Appeal from Circuit Court, Daviess County; Frank Sheetz, Special Judge.

Action by Joshua A. Scott and others against Charles T. Royston and others. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

The plaintiffs brought this suit in the circuit court of Daviess county to determine title to the lands described in the petition. The court found for the defendants and entered judgment accordingly, from which plaintiffs duly appealed.

The facts are few and simple, and are substantially as follows: One Andrew J. Scott in his lifetime owned and occupied the land in controversy as a homestead, which contained 107 acres, not exceeding in value the sum of $1,500. There was a school fund mortgage for the sum of $65.35 existing against 50 acres of the homestead, bearing 6 per cent. interest. A judgment for $229 had been rendered against Scott, which was claimed to be a lien upon all of said homestead. Said Scott died September 9, 1881, intestate, in said county, leaving surviving him his widow, Mary Ann Scott, two adult children, Joshua A. Scott and Rebecca Jane Sloan, and the following minor children, namely, Robie, Ruth, John, Dora, Effie, and Clarence Scott. These children of Andrew J. Scott are plaintiffs in this case, and claim title to the land in controversy as his heirs at law. The defendant Charles T. Royston claims title thereto through A. D. Scott, who purchased said land at the sale to be presently mentioned. On February 3, 1885, John A. Dunn was by the probate court of Daviess county duly appointed guardian (but not curator) of the estates of Robie, Ruth, John, Dora, Effie, and Clarence Scott, the minor children of said Andrew J. Scott. On February 4, 1885, the widow, Mary Ann Scott, Joshua Scott, and Rebecca J. Sloan, the adult children of Andrew J. Scott, and Isaac N. Goodwin, the owner of the judgment before mentioned, and all of said minor children, by their guardian, John A. Dunn, as ex parte plaintiffs, filed in the circuit court of said county a petition, of which the following is a copy (formal parts omitted): "(1) Plaintiff states: That the above-named plaintiffs, Robie Scott, Ruth Scott, John Scott, Dora Scott, Effie Scott, and Clarence Scott, are the sole minor heirs at law, and Joshua Scott and Rebecca J. Sloan are the sole adult heirs at law, and Mary Ann Scott is the widow of Andrew J. Scott, deceased, who died on the 9th day of September, 1881. (2) That at the time of the death of Andrew J. Scott he was seised, possessed, and occupied as a homestead the following described real estate situate in Daviess county, Mo., to wit: The west half and the southeast quarter of the northeast fractional quarter of section 9, township 60, of range 27, containing 105 acres, and not exceeding in value the sum of $1,500. That the said homestead at the death of the said Andrew J. Scott passed to and vested in said widow and said minor children as is provided by statute concerning homesteads. (3) That said Clarence is 4 years old, the said Effie is 6 years old, and the said Dora is about 8 years old, and the said John is about 10 years old, and the said Ruth is about 14 years old, and the said Robie is about 16 years old, and the said Mary Ann Scott is 45 years old. (4) That no administration has ever been sued out upon the estate of said Andrew J. Scott, but since his death the said widow, Mary Ann Scott, has paid off the debts of the said deceased, the sum of $149.20, and kept the taxes upon said real estate paid, and there are no other debts provable against said estate except as hereinafter stated. (5) That during the lifetime of the said Andrew J. Scott he borrowed of the county of Daviess the sum of $65.35, to secure which he conveyed by his mortgage deed to said county of Daviess the southeast quarter of the said northeast fractional quarter of section 9, subject to the condition that if the sum of money so borrowed, with the interest thereon, should be paid, then the said mortgage deed should be void, and the said sum of borrowed money has never been repaid. (6) That during the lifetime of him, the said Andrew J. Scott, to wit, on the 16th day of October, A. D. 1875, one Levi Cline recovered against him, the said Andrew J. Scott, in the circuit court of Daviess county, Mo., a judgment for the sum of $229, and which bears interest at the rate of 10 per cent. per annum. (7) That said judgment has never been paid or satisfied, and the said Levi Cline duly and lawfully assigned said judgment to the plaintiff Isaac N. Goodwin. That said west half of said northeast fractional quarter of said section No. 9 is now of the reasonable value of $800. (8) That the judgment aforesaid now amounts, with interest, to the sum of $442, and will amount to the sum of $1,071 at the termination of the reasonable expectation of the life of said widow, Mary Ann Scott. (9) That...