Shanklin v. Boyce

• Citation: 275 Mo. 5,204 S.W. 187
• Decision Date: 04 June 1918
• Docket Number: No. 19035.,19035.
• Parties: SHANKLIN v. BOYCE et al.
• Court: Missouri Supreme Court

204 S.W. 187

275 Mo. 5

SHANKLIN v. BOYCE et al.

No. 19035.

Supreme Court of Missouri, Division No. 1.

June 4, 1918.

Appeal from Circuit Court, Grundy County; Geo. W. Wanamaker, Judge.

Action by Nathaniel Shanklin against Richard E. Boyce and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

O. M. Shanklin, of St. Joseph, John W. Bingham, of Milan, J. D. Allen and J. M. Davis & Son, all of Chillicothe, and Hubbell Bros., of Trenton, for appellant. J. W. Perry, of Kansas City, and A. G. Knight, of Trenton, for respondents.

BOND, P. J.

I. In January, 1911, the plaintiff filed his amended petition, making Richard E. Boyce and Grundy county, Mo., defendants, alleging that he became insane on November 26, 1895, and remained in that condition until July 15, 1910, when his reason and understanding were fully restored; that at the time of his becoming insane he owned certain real estate described in his petition; that on December 28, 1896, one C. L. Berry, assuming to be the guardian of the person and estate of the plaintiff, unlawfully and fraudulently took possession of said property and attempted to sell and convey the same to Richard E. Boyce, for the purported consideration of $18,000, and made and delivered to said Boyce a guardian's deed to said property now of record in the recorder's office of Grundy county; that the grantee took possession of the property, and continued so to hold the same in fraud of plaintiff's rights; that said grantee on March 6, 1917, borrowed certain county funds to the amount of $4,000 and executed a mortgage to secure the same, with full knowledge on the part of both said Boyce and the parties making the that time; alleged that these transactions were clouds upon his title, which he prayed should be set aside and annulled, and that possession of said property should be restored to him and for an accounting of rents and profits and a judgment therefor.

A demurrer was overruled and after answer and adduction of evidence the trial court rendered a judgment in favor of defendants, from which plaintiff has duly appealed.

Under the evidence in this case no question existed as to the fact and duration of the insanity of the plaintiff, nor as to the complete restoration of his faculties, as stated in his second amended petition. Nor is it denied that the proceedings for the appointment of his guardian were had and conducted without any notice whatever to the plaintiff and without his personal presence in the probate court at the time of the alleged inquisition. That portion of section 476 of the Revised Statutes of 1909 which permits the appointment of a guardian or curator of insane persons, without notice given to the alleged insane person was held unconstitutional in Hunt v. Searcy, 167 Mo. 158, 67 S. W. 206, after a full review of the authorities in this state and a clear discussion of the terms of the statute and the constitutional rights of persons affected thereby. The able author of that opinion buttressed his conclusion upon elemental propositions of...