State ex rel. Weaver v. Weaver
| Decision Date | 20 June 1887 |
| Citation | 4 S.W. 697,92 Mo. 673 |
| Parties | The State ex rel. Weaver v. Weaver, Executrix, et al., Appellants |
| Court | Missouri Supreme Court |
Rehearing Denied 92 Mo. 673 at 682.
Appeal from Bates Circuit Court. -- Hon. James B. Gantt, Judge.
Reversed.
Holcomb & Silvers for appellants.
(1) The evidence submitted by plaintiff shows no breach of the bond and, therefore, no cause of action against defendants. (2) The relator should be remitted to his action on the bond for the guardian's failure to comply with the order of the court, in failing to make an actual bona fide sale. The sale was a bogus one, for his own private ends, and the breach of the bond alleged was not proved. Bigelow on Estoppel [3 Ed.] pp. 96-7; Pritchard v. Hitchcock, 6 M. & G. 151; Drummond v. Prestman, 12 Wheat. 515; Bissell v Saxton, 66 N.Y. 55; State v. Rosswaaf, 3 Mo.App. 11. (3) The grounds of equitable defence set forth in the answer may be pleaded in this case. State v. Meagher, 44 Mo. 356. (4) In this case, the guardian acted in good faith, and he can only be held to common prudence, skill, and caution in making the reinvestment. At the time of the Bybee exchange, the Portsmouth property received by guardian, and held in trust for relator, was worth far more than his interest in the Bates county land. Konigmacher v. Kimmel, 1 P. & W. 207; Jones' Appeal, 8 W. & S. 143; Clark v. Garfield, 8 Allen, 427. The ground upon which the court made the order of sale was, that the proceeds thereof might be invested in other lands. This we claim he did, indirectly, it is true, in the land trade with Bybee. (5) The guardian should not be chargeable with interest on the proceeds of the sale, as he maintained and educated his ward. And he further appears to have borne all the expenses incident to the guardianship; paid all the costs and attorneys' fees connected with the sale of the land. For all this, he should certainly be reimbursed. Maupin's Executor v. Dulany's Devisees, 5 Dana, 589; Otto v. Becton, 55 Mo. 99.
Gantt & Casey for respondent.
(1) The plaintiff's evidence made out a prima facie case. But conceding such not to be the case, defendants by their own evidence supplied the alleged defects. Kelly v. Railroad, 75 Mo. 138. (2) The sureties are estopped to make the defence urged in their behalf. The guardian in no way complied with the law, and the breach was complete, whether for the failure to pay $ 2,160 and interest, as required, or whether the damage came from the failure to make a bona fide sale. In either case, the ward has, under the forms of law, been utterly despoiled of his estate. (3) There is no equitable defence. (4) The guardian is chargeable with interest on the money. There is no evidence that he paid any attorneys' fees, and there were no expenses of guardianship, as he scrupulously avoided the probate court; and as there is no evidence as to what the maintenance was worth, and as the father and guardian did not charge for maintenance, the sureties cannot for him.
The deceased, Jacob Weaver, was the father and natural guardian of the relator, George W. Weaver. This action was brought on a bond for three thousand dollars, executed by the said Jacob Weaver, as principal, and the said defendants, Felix R. Weaver and William Fisher, as sureties, the condition of which is as follows: "The condition of the above obligation is such that whereas the above bounden Jacob Weaver, as the natural guardian of his son, George W. Weaver, did, at the March term, 1874, of the circuit court of Bates county, Missouri, obtain from said court an order, directing him to sell the land or real estate of the said George W. Weaver, and all his interest in said real estate described in said order; now, if the said Jacob Weaver shall conduct such sale with fidelity to the interests of his said ward, George W. Weaver, and faithfully account for the proceeds of such sale according to law, and as the order of the court may require, then this obligation to be void, otherwise to remain in full force and effect in law."
It is alleged in the petition that said bond was, on the twenty-eighth day of July, 1874, duly approved by the circuit court of the county of Bates aforesaid, and the following breach of the condition thereof is assigned: "That said Jacob Weaver, as such guardian, sold said land at the July term of said circuit court for the year 1874, for the sum of $ 2,160, and received said sum of money into his hands as such guardian, but that said Jacob Weaver, as such guardian, failed to faithfully account for the proceeds of such sale according to law, in this that he failed, refused, and neglected to reinvest said sum of money, as required by law, and neither he nor any one for him has ever accounted for or paid over the same."
The defendant, Martha A. Weaver, executrix of said Jacob Weaver deceased, made default. The defendants, Felix R. Weaver and William Fisher, answered, saying that they had no information sufficient to form a belief as to whether the said Jacob Weaver sold said land for the sum of $ 2,160, and received said sum of money, as charged in the petition, or not; denied the breach of the bond therein assigned, and, for further answer, alleged, in substance, that the real estate described in the petition as the property of the relator, was purchased, and the consideration therefor paid, by the said Jacob Weaver, deceased, who caused it to be conveyed to his son, the relator, who was a minor about twelve years of age when the last conveyance was made, in January, 1871, residing with his father, and who continued to reside with his father until his majority, July 18, 1880, and until the death of his father, December 28, 1881; that said real estate was sold by the said Jacob Weaver, guardian of the relator, at public sale, under the order of the circuit court of Bates county, and the said defendant, Felix R. Weaver, became the nominal purchaser thereof, the actual purchaser being one Joseph Bybee, who paid the whole consideration therefor; that, although the deed of the said Jacob Weaver, guardian, as aforesaid, conveying said real estate to said Felix R. Weaver, recites a consideration received by said guardian from said Felix R. Weaver of $ 2,160, no consideration was, in fact, paid by said Felix R. to said guardian therefor; that the actual consideration for said real estate was paid by said Bybee; that the consideration paid therefor by said Bybee, and for other lands held by said Jacob Weaver, in his own right, and that of his wife, was the conveyance by the said Bybee to the said Jacob Weaver, on the fifth day of May, 1874, of certain lands owned by the said Bybee, among others, a certain lot adjacent to the city of Portsmouth, in the state of Ohio; that the said Felix R. Weaver, on the nineteenth of December, 1874, at the request of the said Jacob, and without any consideration by him received therefor, united with the said Jacob and his wife in a deed of conveyance of said real estate of the relator, so nominally purchased by him at said public sale, conveying said real estate to the said Bybee; that said real estate, so nominally purchased and conveyed by him, was worth $ 2,160, and said lot adjacent to the city of Portsmouth, was worth four thousand dollars; that afterwards, on the tenth day of June, 1881, the said Jacob Weaver conveyed said...
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