State ex rel. Perry v. Towl

• Decision Date: 31 March 1871
• Citation: 48 Mo. 148
• Parties: THE STATE OF MISSOURI, TO USE OF LUCY W. PERRY et al., Defendant in Error, v. GEORGE TOWL et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

48 Mo. 148

THE STATE OF MISSOURI, TO USE OF LUCY W. PERRY et al., Defendant in Error,

v.GEORGE TOWL et al., Plaintiffs in Error.

Supreme Court of Missouri.

March Term, 1871.

Error to Second District Court.

G. I. Van Alen, for plaintiffs in error.

The court erred in allowing the pretended deed from French, as guardian of said minors, to be read in evidence. The report of commissioners, the order of sale by the court, the report of sale, and the sale and conveyance all having been made at the same term of court, the proceedings were void and did not affect the title of the infants to said land. (Sedgw. Stat. and Const. Law, 349, 351; 2 How., U. S., 319; 22 Mo. 310; 4 Wheat. 395; Strause v. Drennan, 41 Mo. 289.)

Wingo & Relfe, for defendant in error.

I. This case differs from an administrator's sale very materially, because there the law expressly provides that the report shall be made in a certain manner and at the next term, and, if not approved, to be void. The law governing this sale does not include the idea of a report of sale to be made at a subsequent term, nor does it say the sale shall be void if not approved.

II. The order of sale, approval and report, like that in a partition suit, is a final judgment and cannot be collaterally attacked. (Latrielle v. Dorleque, 35 Mo. 233.) This was a proceeding ex parte, the court had jurisdiction, and its final determination cannot here be impeached. (Perryman v. State, 8 Mo. 208; McNair v. Biddle, 8 Mo. 257-264; 10 Pet. 472; 17 Mo. 71.)

III. If the sale is even void, and conveyed no title to the purchaser, yet the guardian has received $1,500 of the purchase money from grantee for the infants, which they would have to refund if they recovered the land. They cannot have both land and money, neither the whole nor part of both. If they elect the land they must refund; if they elect the money they are entitled to recover in this action, because the amount so claimed by them having been invested by their guardian, his sureties are liable. The privilege of infancy is a shield, not a sword. They cannot have the benefit of a contract on the one side without returning the equivalent on the other. (2 Kent's Com. 240; 15 Mass. 345; Badger v. Phinney, 1 N. H. 73; Roberts v. Wiggins, 7 Cow. 179; Roof v. Stafford, 6 N. H. 339; Smith v. Evans, 5 Humph., Tenn., 70; Heath v. Stevens, 48 N. H. 251; 1 Am. Lead. Cas. 116; Tyler on Inf. and Cov., §§ 37-8; Jones v. Stanton, 11 Mo. 433; Owen v. Rector, 44 Mo. 389; Hillyer v. Bennett, 3 Eden's Ch. 222.)

BLISS, Judge, delivered the opinion of the court.

One George R. Richards, deceased, was guardian of the estate of plaintiff Lucy W. Perry and others, and, as such guardian, presented a petition to the Circuit Court for an order of sale of the real estate of his wards, under sections 34 and 35, chapter 116, Gen. Stat. 1865 (Wagn. Stat. 677), and the defendants became his sureties upon the bond required by section 35. He sold the property for $7,000, for $1,500 of which he failed to account, and died insolvent. This suit is brought for the use of his wards against his sureties, and they claim exemption from liability upon various grounds, but principally because, as they allege, the proceedings upon which the sale was had were void and no title passed by the sale, and hence the infants have no claim to what was paid over to their guardian.

It appears that the guardian made report of the sale of the land at the same term of the Circuit Court at which the order of sale was made. I see no other irregularity of importance, and defendants' counsel seem to rely mainly upon this to sustain their claim. Defendants acknowledge that the land was sold, and that they became specially obligated to see to the faithful application of the money. It hardly becomes them to now say that it was not properly sold, and the purchaser not complaining, that the minors are not entitled to the money received for their use. But we do not say that, if the proceedings were void, the defense would not be a good one, but will only consider the question of their validity until reversed by a direct proceeding.

It has always been held by this court that in an order of sale by a Probate Court, the title does not pass until the report of the sale and its approval, and that the proceedings are a nullity and no title passes if the report is made and the sale approved at the term when the order issued.

This matter is thoroughly discussed in Strause v. Drennan, 41 Mo. 289; and in an action of ejectment by the minor after arriving at majority, a previous sale by his guardian was held for naught, partly for the reason that the report of the sale was confirmed at the term at which the sale was made. The court, however, distinguishes between courts of limited jurisdiction, like courts of probate, and those of general jurisdiction, and exercising it according to common-law rules, the reason for which distinction I will hereafter consider. In Roberts v. Casey, 25 Mo. 584, although no report and approval of the sale were required in the act then under discussion, Judge Napton acknowledges “that if the title of the purchaser depended on the approval and sanction of the court, there could of course be no title anterior to...