Strouse v. Drennan

• Decision Date: 31 August 1867
• Citation: 41 Mo. 289
• Parties: JOHN M. STROUSE, Appellant, v. WILLIAM DRENNAN, et als., Respondents.
• Court: Missouri Supreme Court

41 Mo. 289

JOHN M. STROUSE, Appellant,

v.WILLIAM DRENNAN, et als., Respondents.

Supreme Court of Missouri.

August Term, 1867.

Appeal from the Fifth District Court.

The guardian's deed was as follows:

“Know all men by these presents, that at the adjourned term of the Probate Court of Platte county, Missouri, in the month of June, in the year 1854. I applied to said court for an order to sell the real estate of George Strouse, deceased, for the education of his minor child, which was granted; and I, as the guardian of John M. Strouse, the only child and heir of the said deceased, in pursuance to said order of said court, sold to James M. Davis, of Platte county and State aforesaid, for and in consideration of nine hundred and twenty-five dollars to me in hand paid as guardian as aforesaid, the south-west quarter of section number twenty-three (23), in township number fifty-two (52), and range number twenty-four (24), situated in said county of Platte; which said quarter section of land, by virtue of the power by law in me vested, and all the right, title and interest therein of the said George Strouse at the time of his death, and which has since descended to his heir, for and in consideration of the amount of money aforesaid, I have granted, bargained and sold, and by these presents do give, grant, bargain and sell unto the said James M. Davis, and unto his heirs and assigns forever: To have and hold the premises aforesaid unto the said James M. Davis, and his heirs and assigns forever, free from the heirs of said George Strouse, deceased, and all others claiming under him. In testimony whereof. I hereunto set my hand and seal this 22d day of July, 1854. Alexander Baker, guardian. [Seal.]”

Duly acknowledged and recorded.

Doniphan & Carroll, for appellant.

The only point presented in the court below was that defendant's record showed a proper sale of the property sufficient to convey the fe simple title of the minor's estate. They asked such an instruction and it was refused; but the court instructed the jury, that Baker, the guardian, had not fully complied with the law in selling the property. The sale was approved on the 6th day of July, 1854. the same term at which the sale was made. This makes the record show that the law was not complied with in the matter of the sale and the approval, and the sale may be attacked in a collateral proceeding--22 Mo. 310; Valle v. Fleming et al., 19 Mo. 454; Knowlton v. Smith, 36 Mo. 513.

The plaintiff here is entitled to treat the sale as a nullity--Caldwell v. Lockridge, 9 Mo. 358, & 22 Mo. 317. This case settles the doctrine that the heir may call in question the sale in a suit by him against the purchaser. Where the administrator's sale is void, the remedy of the heir is to sue for possession--Bank v. White, 23 Mo. 342. A guardian is bound to comply with the statutory provisions affecting his duty in discharge of his trust-- Finney v. State, 9 Mo. 227.

This sale was made under the act of 1851 (see p. 217), and it had to be strictly complied with--7 J. J. Marsh. 502; 6 Dana, 466; 12 Mo. 63; 7 Dana, 479. It is decided that a guardian must strictly perform his duties, but need not strictly report the same.

In this case there is no evidence of any petition filed by the guardian, or what it contained, except as recited in the order of the court; and the order of the court is defective, as it does not show the land was to be sold alone for the education of the minor, and is void--Beal v. Harmon, 38 Mo. 435. There is no pretence that the land was ever appraised; and in Robert v. Casey, 25 Mo. 585, the court say the purchaser must see that the law has been complied with until he gets a deed, but afterwards he is not responsible for the dereliction of the guardian.

As the law then stood, it was the duty of the purchaser to see that the Probate Court had ordered a sale of the land to educate the minor; that the administrator had complied with the law in such sale, and had given him such a deed as the law required. If he failed in these respects he is prejudiced thereby, and the court will not protect him in his own laches--25 Mo. 593; 21 Mo. 598. The order of the court fails to show the purpose of the sale.

In the District Court Judge Clark, in effect, decided that the sale was a bad one, but he agreed to a reversal because he says the defendants had no equity. That may be so or not, but the papers do not present such a case, and no such consideration of it is asked in the pleadings.

Judge Heron ignores all the points except the failure to appraise the property, and decides that the approval of the sale cured the defect, and relies upon the decision of the U. S. Court in Grignon v. Astor, 2 How. 319. This case is overruled for our purpose in 19 Mo. 461-2. He only goes upon the hypothesis that an order of approval of sale is like an order adjudging that real estate shall be sold. Previous to the act of 1851 approval of the sale was not necessary, but by that act it became necessary to report the sale at the next term thereafter, with a full report of the proceedings and including a copy of the advertisement and a certificate of the appraisement verified by affidavit. (See § 32, Stat. of 1845, p. 48.) These are positive requirements that cannot be cured by the approval, unless after the lapse of a long period of time, and when the deed showed by recital that such requirements had been complied with. Here the deed was not such as was required by law. (See Acts 1851, p. 218.) Sec. 3 and sec. 5 require that they shall be referred to in apt and appropriate language. When no deed is made, no interest can pass-- Wohlein v. Speck, 18 Mo. 563; 22 Mo. 310. Then the deed does not convey the interest of the ward, and a guardian can convey none other--21 Mo. 603; 6 Conn. 258; Id. 373, 385; 19 Mo. 463. The Supreme Court have decided that a deed not properly acknowledged cannot be recorded or used--38 Mo. 70. This was acknowledged before W. E. Baker, clerk, who had no power to take acknowledgments out of term time, if at all--Laws of 1851, p. 210, sec. 10.

The deed fails to recite the order of the court, the advertisement, the appraisement, the time, place or terms of the sale, and, instead of conveying the interest of the ward, it conveyed the interest of George Strouse the father, at the time of his death: he could pass no title but that of John M. Strouse at the time of making the deed--Dickerson v. Campbell, 32 Mo. 544.

In this case the decree of the Probate Court is not called in question collaterally. It may have been all right, and the subsequent acts of the guardian insufficient to convey title to the infant's land. An infant could not be divested of his real estate by the common law, and to divest him under the statute it must be strictly complied with, as the purchaser's title comes through that channel only--Calvert v. Godfrey, 6 Beav 97; Garniston v. Gavit, 9 Law Jur. 78.

The court of chancery has no inherent original jurisdiction to direct the sale of infant's real estate--Rodgers v. Dill, 6 Hill, (N. Y.) 415. The Probate Court of Platte county had no jurisdiction--Acts of 1847, p. 27, & 1849, p. 428.

Woodson, for respondents.

I. For the purpose of making sale of the real estate of infants, approving the same, and determining all questions connected therewith, the Probate Court of Platte county was a court of general jurisdiction. It had jurisdiction of the subject matter of this suit, and all of its acts are valid and binding upon the parties, and most clearly cannot be questioned in a collateral proceeding-- Frye v. Kimball, 16 Mo. 21; Overton v. Johnson, 17 Mo. 442; Wohlien v. Speck, 18 Mo. 563; 10 Pet. (U. S.) 473; 2 How. (U. S.) 319. We ask the especial attention of the court to the whole of the two last above cited cases--4 Dana, 429; 15 Ohio, 703; 16 U. S. Dig. 309; Wolf v. Robinson, 20 Mo. 459; 20 U. S. Dig. 442, §§ 190, 197, 205.

II. No appeal lies in this case to this or any other court. Under our statute, appeals from the inferior courts to the Supreme Court only lie upon final judgments. There was no final judgment in this case, and the appeal should be dismissed.WAGNER, Judge, delivered the opinion of the court.

A preliminary question is raised by the respondent's counsel as to whether this court can take cognizance of this case as it now stands. The case was appealed from the Platte Circuit Court, and on a hearing in the District Court the judgment of the Circuit Court was reversed and the cause remanded, and it is now suggested that the judgment of the District Court is not such a final determination as will authorize an appeal. The law provides that, on all final judgments rendered in the District Courts, appeals, or writs of error, may be taken to the Supreme Court. It is true the judgment of the District Court is not a complete and final disposition of the cause, putting it at rest forever, as is contemplated, and orders further proceedings in another court; nevertheless it may be said to be final so far as the District Court is concerned, where, under a similar law, which declares that every person aggrieved by any final judgment or decision of any Circuit Court, might appeal, &c., a writ of error was sued out from a judgment of the County Court to the Circuit Court, and, upon a trial in the latter court, the judgment of the County Court was reversed and the cause remanded for a new trial. From that decision an appeal was taken to the Supreme Court, and a motion was made to dismiss the appeal on the ground that the judgment was not final; but it was held, that the law was alike applicable to both writs of error and appeals; that the decision in the Circuit Court destroyed the judgment in the court below, and, if it was erroneous, the judgment of reversal should be reversed, the effect of which would be to restore the judgment of the County Court; and that the judgment was final, from which an appeal or writ of error would well lie within the meaning of law. The...