State ex rel. Tourville v. Roland

• Decision Date: 31 March 1856
• Citation: 23 Mo. 95
• Court: Missouri Supreme Court
• Parties: THE STATE, TO THE USE OF TOURVILLE, Appellant, v. ROLAND & LEHMAN, Respondents.

23 Mo. 95

THE STATE, TO THE USE OF TOURVILLE, Appellant,

v.ROLAND & LEHMAN, Respondents.

Supreme Court of Missouri.

March Term, 1856.

1. The settlements and allowances of the accounts of administrators, curators, and guardians, by the county or probate courts, are considered equivalent to judgments of a court of competent jurisdiction.

2. An action at law, therefore, can not be maintained on a guardian's bond for his failure to account for the rents and profits of real estate in his charge, where the record of his settlements before the county or probate court shows that he was duly accounted.

3. If the guardian has fraudulently procured allowances in his favor to be made by the county or probate court, these allowances should be first set aside in an equitable proceeding instituted for that purpose; an action upon the bond may then be sustained.

Appeal from St. Louis Circuit Court.

This was a suit to recover of defendants on account of a breach of the condition of a bond given by Roland as guardian of the relator, and Lehman as security. The guardianship was alleged, and the breach assigned was the alleged failure of defendant (Roland) to rent out all the tenements and real estate of said relator, and his failure to account to the probate court or to the relator himself for certain rents alleged to be due relator for a portion of said premises occupied and enjoyed by said Roland. The defendants, in their answer, allege that said Roland, with his own means, erected the dwelling on said premises; that he was administrator of the estate of the relator's father, from whom relator acquired title to said premises by descent, and that in his yearly accounts, as administrator and as guardian of the relator, he had fully accounted for the rents and profits, use and occupation of said real estate, &c.

Plaintiff introduced evidence tending to prove that the defendant (Roland) occupied the premises from January 20th, 1841, to January 20th, 1852; also the value of the yearly rents, and that said premises were owned by said relator and his brother, who acquired the same by descent from their father, Toussaint Tourville, deceased.

Defendant introduced evidence tending to prove his appointment as administrator of the estate of the father of said relator; also his various settlements with the probate court from 1841 up to and including his final settlement in 1845, and also his various settlements, as guardian of the relator, up to and including his final settlement, as guardian, after his letters had been revoked in 1852; by which settlements it appeared that said Roland had charged himself with rents, and that on said final settlement in 1852, a balance was found by the court in his favor and against said relator. Said relator was a minor at the time of said settlement.

The relator offered to prove in rebuttal that there were improvements on the lot owned by the relator and his co-heir, other than the one occupied by said Roland, which were rented by said Roland; and that the annual rents of such improvements equalled or exceeded the amount of rent charged by said Roland to himself in said accounts, and that said charges were not wholly or in part for said Roland's own use and occupation of the premises. This evidence the court excluded on the objection of defendants. The plaintiff duly excepted.

The court then gave the following instruction, on the motion of defendants: “If the jury believe from the evidence that the defendant was the...