Shanklin v. Ward

Decision Date19 December 1921
Citation236 S.W. 64,291 Mo. 1
PartiesNATHANIEL SHANKLIN, Appellant, v. HENRY A. WARD et al
CourtMissouri Supreme Court

Appeal from Grundy Circuit Court. -- Hon. L. B. Woods, Judge.

Reversed and remanded (with directions).

George Hall, O. M. Shanklin and Hubbell & Hubbell for appellant.

(1) The trial court erred in rendering judgment in favor of respondent against appellant for purchase money in the sum of $ 2600 and interest thereon, because respondent is only a grantee of a grantee of the pretended guardian of appellant and has no legal or equitable claim against appellant for his purchase money, which respondent paid to Berry, his grantor solely, under the terms of a warranty deed. McKenzie v Donnell, 151 Mo. 469; Dewey v. Algire, 55 N.W 276, 37 Neb. 6, 40 Am. St. 469; Hovey v. Hobson, 53 Me. 457, 89 Am. Dec. 705; German Savings Soc. v DeLashmutt, 67 F. 399; 23 Am. & Eng. Ency. Law (2 Ed.), 482 to 485; Brown v. Baldwin, 121 Mo. 125; Kugel v. Knuckles, 95 Mo.App. 670; Patterson v. Booth, 103 Mo. 414; McDonald v. Quick, 139 Mo. 498; Dormitzer v. German Sav. Soc., 62 P. 890, 23 Wash. 132; Brush v. Ware, 10 L.Ed. 679; Rogers v. Walker, 47 Am. Dec. 470, 6 Pa. St. 971; Dexter v. Hall, 21 L.Ed. 73, 82 U.S. 9, 15 Wall. 9, 28; Shanklin v. Boyce, 275 Mo. 5; Building & Loan Assn. v. Eveler, 237 Mo. 679; Bank v. Shanklin, 174 Mo.App. 639; Hunter v. Hunter, 79 Am. St. 845. (2) Hughes, the pretended successor of Berry, as guardian did not sell the property in controversy for cash as provided in the order of sale and as provided by statute, and the whole proceeding between Hughes and Berry was void and illegal, and the pretended order of approval was void and illegal; the assumed twenty-five hundred dollars purchase money, assumed to have been paid by Berry to the pretended guardian, was not paid in cash, or otherwise, to the pretended guardian, but was taken out of Shanklin's estate under the pretense of reimbursing Berry for his exchange and trade of his own property to Shanklin's wife; the assumed $ 2500 purchase money went from Shanklin's estate to Berry instead of Berry to Shanklin. This was a fraud in law and in fact against Shanklin, and equity will not aid in the perpetration of a fraud, such as this, by subrogation or otherwise; and for this reason, the respondent, nor any one else, could be subrogated to any alleged rights or privileges of Berry, the fraudulent grantee in the pretended guardian's deed. Secs. 430, 505, 506, R. S. 1909; 37 Cyc. 372, 380, 381; 16 Cyc. 142, 194; 16 Am. & Eng. Ency. Law (2 Ed.), 593; 27 Am. & Eng. Ency. Law (2 Ed.), 204, 241; Tallent v. Fitzpatrick, 253 Mo. 18; Freeman on Void Judicial Sales (4 Ed.), secs. 4a, 9, 21, 36, 40, 50; Rannells v. Gerner, 80 Mo. 480; King v. Sipley, 25 Am. & Eng. Ann. Cas. 1912D, 704, 166 Mich. 258, 34 L. R. A. (N. S.) 1058; 14 R. C. L. 576; 12 R. C. L. 1127; Kearnes v. Nickse, 10 Am. & Eng. Ann. Cas. 420, 80 Conn. 23; Woodward v. Jewell, 25 L.Ed. 481, 140 U.S. 247; Perin v. Megibben, 53 F. 97; Miller v. Staggs, 266 Mo. 449; Parker v. Bowers, 84 S.W. 382; German Savings Soc. v. Tull, 136 F. 1; Milwaukee Ry. Co. v. Stouter, 13 Wall. 517, 20 L.Ed. 543. (3) Without considering the fraudulent procurement of Shanklin's property by Berry, the respondent does not show a state of facts which would authorize him to be subrogated and substituted to any alleged rights or privileges of the said Berry against the appellant for the purchase money which the respondent paid to his grantor, Berry. 37 Cyc. 447, 448; Ins. Co. v. Middleport, 31 L.Ed. 537, 124 U.S. 534; McKenzie v. Donnell, 151 Mo. 471; Bank v. Shanklin, 174 Mo.App. 646; Berry v. Stigall, 253 Mo. 690; German Loan Soc. v. DeLashmutt, 67 F. 401; Roberts v. Best, 172 Mo. 67; McDonald v. Quick, 139 Mo. 484; 27 Am. & Eng. Ency. Law (2 Ed.) 246, 204; Implement Co. v. Jones, 143 Mo. 253; Valle v. Fleming, 29 Mo. 160; 37 Cyc. 373, 391; Shanklin v. Boyce, 275 Mo. 5. (4) Respondent had personal knowledge and actual notice of the insanity of appellant at all times, and the fact that the Probate Court proceedings were held without his presence and without notice being served on appellant was spread of record in the chain and line of respondent's title; and the fact that the pretended guardian's deed of May 3, 1900, was executed, jointly, by said pretended guardian and Nora B. Shanklin was shown in the chain and line of his title and, therefore, the respondent was not a purchaser in good faith, for value, without notice for any purposes in this case. 39 Cyc. 1688; Shanklin v. Boyce, 275 Mo. 5; Halley v. Troester, 72 Mo. 73; Heard v. Sack, 81 Mo. 610; Gillespie v. Gouly, 52 P. 816, 120 Cal. 515; 14 R. C. L. sec. 40, pp. 584, 585; Frazier v. Peakins, 64 Kan. 615, 68 P. 24, 57 L. R. A. 575; Reeder v. Barr, 22 Am. Dec. 762, 4 Ohio 446; Brown v. Baldwin, 121 Mo. 107; Lee v. Bowman, 55 Mo. 400; Lodge v. Simonton, 23 Am. Dec. 36, 48; Tydings v. Pitcher, 82 Mo. 379; McArthur v. Scott, 28 L.Ed. 1015, 1025, 1036; Cordova v. Hood, 21 L.Ed. 587; Brush v. Ware, 10 L.Ed. 672, 40 U.S. 93; Coal Co. v. Doran, 35 L.Ed. 1072, 142 U.S. 417; Turner v. Edmonston, 210 Mo. 411, 124 Am. St. 739; Cobe v. Lovan, 193 Mo. 235, 112 Am. St. 480, 4 L. R. A. (N. S.) 439; Gross v. Watts, 206 Mo. 373, 394; 27 R. C. L. sec. 481, pp. 710, 715; 20 R. C. L. sec. 7, pp. 346, 347, 353; Building & Loan Assn. v. Eveler, 237 Mo. 679; Sec. 2401, R. S. 1909.

L. A. Warden, J. C. Wilson and A. G. Knight for respondents.

(1) Conceding the irregularities of the proceedings adjudging plaintiff insane, and that the deed of Hughes, his second guardian, as absolutely void, and likewise the warranty deed from Berry, the grantee, to defendant Ward, yet plaintiff's estate received the benefit of this very property, and where this is so an owner or his heirs cannot attack the sale, as against a bona-fide purchaser, without refunding the purchase money, with simple interest, together with all sums laid out by him in improvements, and a liberal allowance for all trouble, costs and expenses incurred by him, including just allowances for necessary expenses of repair, management and improvement. 16 R. C. L. sec. 75, note 11; Clay v. Freeman, 118 U.S. 97, 30 U.S. (L. Ed.) 104; Penn, v. Heisey, 19 Ill. 295, 68 Am. Dec. 597; Muir v. Berkshire, 52 Ind. 149; Wilson v Brown, 82 Ind. 471; Banks v. Bales, 16 Ind. 423; Burnes v. Ledbetter, 56 Tex. 282; Jones v. Smith, 55 Tex. 383; O'Brien v. Harrison, 59 Iowa 686, 12 N.W. 256, 13 N.W. 764; Kendrick v. Wheeler, 85 Tex. 247, 20 S.W. 44; Douglas v. Bennett, 51 Miss. 680; Burleigh v. Bennett, 9 N.H. 15, 31 Am. Dec. 213; Vale v. Fleming, 19 Mo. 454; Same Case, 29 Mo. 152; Schafer v. Pansey, 76 Mo. 365; 2 Woerner, Am. Law Armin. 1080, 1081; Cunningham v. Anderson, 107 Mo. 371; Mobley v. Nare, 67 Mo. 546; Long v. Joplin Co., 68 Mo. 422; Shroyer v. Nickell, 55 Mo. 264; Henry v. McKarlie, 78 Mo. 416; Wellsly v. Lincoln Co., 80 Mo. 424; Burden v. Johnson, 81 Mo. 318; Price v. Estill, 87 Mo. 378; Sampson v. Mitchell, 125 Mo. 217; Stump v. Hornback, 109 Mo. 272; Hull v. Hull, 35 W.Va. 155, 29 Am. St. 800; Iron Co. v. Fullenwider, 87 Ala. 584, 13 Am. St. 73; Elliott v. Labarre, 2 La. 326; Evans v. Snyder, 64 Mo. 516; Griffin v. Nicholas, 224 Mo. 275, 312-340; Bruschke v. Wright, 166 Ill. 183, 57 Am. St. 125; Ray v. Detchon, 79 Ind. 56; O'Brien v. Harrison, 59 Iowa 686; Richards v. Morton, 18 Mich. 255; Jellison v. Halloran, 44 Minn. 199; Rogers v. Benton, 39 Minn. 39, 12 Am. St. 613; Bonner v. Lessley, 61 Miss. 392; Winslow v. Clark, 47 N.Y. 261. (2) Point II of appellant's brief is not well taken. The answer is two-fold. (a) As long as Shanklin had any estate, whether his guardian was one de facto or de jure, such estate was in law and morals, subject to the support and maintenance of his wife and children. It is horn-book law that Shanklin's estate was liable to anyone, whether guardian or otherwise, that furnished his wife and children necessary support. 21 Cyc. 1217, 1218, 1219. (b) And in equity, a third person supplying a married woman with money for necessaries, is permitted to recover from the husband the amount of such sum actually expended for necessaries by her. 21 Cyc. 1222, 1223, note 42; Reed v. Crissey, 63 Mo.App. 184; Moran v. Montz, 175 Mo.App. 360, 162 S.W. 323. (c) Conceding that Hughes reported the $ 8900 as cash received from Berry for the sale of the property in question, and other properties, when the transaction in fact was a mere credit to Berry for money for which the estate was validly in debt to Berry, and for which Shanklin had received full benefit, no such irregularities and non-observance of statutory requirements will authorize a court in equity to take the property away from Berry, or his grantee, and give it back to Shanklin, and at the same time permit Shanklin to hold on to the benefits of his estate, which he received in full, and as well to the improvements, taxes, and to allow him in addition thereto, rents. Such a result is unthinkable in a court of equity. 16 R. C. L. sec. 76, p. 105, note 2; Penn v. Heisey, 19 Ill. 295, 68 Am. Dec. 597; Griffin v. Nicholas, 224 Mo. 275, 340; Bond v. Montgomery, 56 Ark. 563, 35 Am. St. 119; Hull v. Hull, 35 W.Va. 155, 29 Am. St. 800; Jones v. French, 92 Ind. 138; Evans v. Snyder, 64 Mo. 516; Elliott v. Labarre, 2 La. 326; Kendrick v. Wheeler, 85 Tex. 247, 20 S.W. 44; Eisberg v. Phillips, 197 Mo.App. 329, 334; Henry v. McKarlie, 78 Mo. 416. (d) Berry in making provision for the support and maintenance of Shanklin's wife and children, and for the wife's inchoate right of dower, can in no sense be treated as a stranger or volunteer, as he was at least acting under color of authority, and so acting he had and has an equitable right to be reimbursed for such expenditures, the same as though...

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