Thompson v. McClernon
| Decision Date | 04 April 1910 |
| Citation | 127 S.W. 384,142 Mo.App. 429 |
| Parties | JOHN B. THOMPSON, Appellant, v. HUGH McCLERNON et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from Greene Circuit Court.--Hon. James T. Neville, Judge.
AFFIRMED.
Judgment affirmed.
Hamlin & Seawell for appellant.
(1) Partition cannot be made in contravention of a will. Ex-Parte Cubbage v. Franklin, 62 Mo. 364; Stevens v. Larwell, 110 Mo.App. 151; Stewart v Jones, 118 S.W. 1. (2) The description of the real estate to be sold in the notice of sale published in the newspaper must conform to the petition and judgment. Heirs of Burnham v. Hiatt, 143 Mo. 414; Stoffel v. Reiners, 3 Mo.App. 33. (3) The property must be sold at the term the judgment is rendered, unless an order is made extending time of sale. Hughes v. Hughes, 72 Mo 136; Secs. 4407, 4408, R. S. 1899; Walser v Gilchrist, 119 S.W. 413; Carson v. Hughes, 90 Mo. 173. (4) Where there is a duly appointed guardian or curator at the time of the institution of a suit against an infant defendant, the said guardian or curator should defend. Robinson v. Hood, 67 Mo. 669; Clark v. Crosswhite & Fountain, 28 Mo.App. 38; Judson v. Walker, 155 Mo. 179. (5) Josiah Danforth, by accepting money from his curator at the time of his majority, was not estopped from claiming title to the land. Being a child and ignorant of what was going on in regard to the partition proceedings, he was incapable by reason of his infancy of estopping himself in any way. Harrison v. Reynolds, 183 Mo. 533; Action v. Dooley, 74 Mo. 69; Blodgett v. Berry, 97 Mo. 273; Rosecranz v. D. G. Co., 175 Mo. 250.
Frank S. Heffernan for respondents.
(1) Under the statutes, a guardian ad litem of an infant in a partition proceeding seems to be clothed with the full powers of his ward after removal of disabilities. LeBourgeoise v. McNamara, 82 Mo. 189; Payne v. Masek, 114 Mo. 637; R. S. 1899, sec. 4380. (2) A special commissioner appointed by the court to sell partitioned lands and report the sale to the court occupies the same authority as an executor of a will, or an administrator de bonis non. The power to sell follows the office (unlike a sheriff). Francisco v. Wingate, 161 Mo. 557; Evans v. Blackiston, 66 Mo. 437; Dix v. Morris, 66 Mo. 514; Henry v. McKerlie, 78 Mo. 433; State to use v. Towl, 48 Mo. 148. (3) As the objection to the sale being made at a subsequent term from the order to sell was not made by appellant in the trial court, and no mention made in his motion for new trial, the objection being made for the first time in the appellate court, it will not now be entertained by this court. R. S. 1899, sec. 864; St. Louis v. Sieferer, 111 Mo. 663; Haniford v. Kansas City, 103 Mo. 172; Claflin v. Sylvester, 99 Mo. 283; Newton v. Miller, 49 Mo. 283; Greene v. Walker, 99 Mo. 72; Graham v. Railroad, 113 Mo. 408. (4) Josiah G. Danforth, receiving the money arising from the sale of the land after he was twenty-one years old, and all disabilities being removed, and he being competent to contract, is forever estopped from claiming any interest in the lands in question. Meddis v. Kenney, 176 Mo. 205.
On the 14th day of March, 1892, the respondents by their warranty deed properly executed, sold to appellant a tract of land in Greene county, Missouri. That deed contained the usual covenants found in general warranty deeds in use in Missouri. In 1909, the appellant obtained a quitclaim deed to the land from one Joseph G. Danforth, who claimed to have an interest therein paramount to the title conveyed by the respondents. This deed was obtained for the reason that appellant had a purchaser for the land and who claimed that appellant's title was not good on account of an outstanding interest in said Joseph G. Danforth. The appellant paid Danforth for his deed, the sum of $ 300.
This suit was brought in the circuit court of Greene county to recover from respondents money paid for this deed, on the theory that respondents were liable by reason of their warranty deed aforesaid. There was a trial by the court and judgment rendered in favor of the defendants, and plaintiff has appealed.
The court, at the request of the defendants, made a special finding of facts, and which we believe to be supported by the evidence. It will not be necessary to set forth this finding of facts in full, but the substance thereof is as follows: That Priscilla A. Danforth at one time was the owner of the property in controversy; that by her will made prior to the year 1889, she devised to the defendants, children of Josiah G. and Priscilla A. Danforth, the land in controversy. The devisor, Priscilla A. Danforth, was the grandaunt of the devisees. The will provided that the land should remain intact and be used for the benefit, education and support until the oldest child (Ada R. Danforth) should become of age. Prior to the time when said Ada R. Danforth became of age, she commenced a suit for partition of the property. Nothing was done with this suit until 1890, when the plaintiff therein had become of age. The minor defendants, having been duly served with process, were represented by a guardian ad litem, Hon. John P. McCammon. At that time one A. B. Appleby was the regular guardian of the minor defendants, but he filed no answer, although he was the principal actor in all the partition proceedings. He consulted with the mother of the minors and with the attorneys, the guardian ad litem, and appeared in court in person, and was appointed commissioner to sell the property and to lay it off into lots, and it was through his supervision, judgment and business ability that the property was finally sold to the different purchasers for about $ 15,000. This money he took as guardian and kept it and used it for the benefit, education and maintenance of the minors under various orders made from time to time by the probate court of Greene county, until about 1899, when he surrendered his guardianship and turned over the funds to his successor, Dr. J. R. Bartlett.
As the minor devisees became of age, the proper proportion of the money was turned to them until the last (Josiah), who had made the deed to the plaintiff in this case, became of age, when a settlement was made and he received $ 797. Of the amount turned over to him, all but about $ 135 was money from the partition proceedings. In the partition proceedings there was a misdescription of some of the property, especially in the notice of sale, and that while the property was not properly described, legally and technically, yet the property was marked off and measured into lots and parcels, and the purchasers as well as the commissioner, guardian of the minors, knew the parcels they were buying, and there was no mistake or misunderstanding between them.
The court further found there was no fraud in the sale of the property, and that it brought a fair price; that McClernon, one of the respondents, became the purchaser at the commissioner's sale, of the piece of property in controversy, and afterwards sold and conveyed with covenants of warranty, to the plaintiff Thompson; that Thompson, after holding the property some years, desired to sell it, and had a purchaser in view. The purchaser was willing to buy at the price, but on an examination of the abstract the defects in the partition suit became apparent, and that an adverse opinion by the attorneys on behalf of the purchaser caused him to refuse to take the property; whereupon Thompson sought out and found said Josiah Danforth and procured from him a quitclaim deed for $ 300, and the price so paid was reasonable, provided the said Josiah had one-sixth interest in the property, which was indicated by the lapse in the record.
The court also found that said Josiah received his money in the hands of his guardian after becoming of age, and that at said time he did not know of any defects in the sale of the land, or that he had any interest therein, but that he knew that this property had been at one time the property of himself, as well as the other devisees, and that he knew that the funds in the hands of his guardian were the proceeds arising from the sale of this property to these defendants and other purchasers, and that he knew that it was practically the only estate they ever had, and it was a matter of common knowledge to the family that this money came from that source.
The court also found that in the petition suit the court made an order to sell the property at a term of the court, and there was no order showing a continuation of that order to sell at any other time, but the property was sold at a subsequent term.
There are but two assignments of errors. The first is, that the court erred in holding that Josiah G. Danforth had no interest in the real estate, and second, because under the evidence and the law, the judgment should have been for the appellant.
Appellant attacks the partition sale on the following grounds: (1) Because the land was partitioned in contravention of the will; (2) because the notice of sale in the newspaper misdescribed the land; (3) because the land was sold at a term subsequent to the rendition of the judgment and the one at which it was ordered to be sold, and no renewal order of sale was made by the court or clerk in vacation; and (4) because the infant defendants should have defended by their regularly appointed guardian and curator.
At the time of the partition proceedings, section 4380 of the Revised Statutes of 1899, was in force, and that section reads as follows: "The guardians and curators of the estates of minors and persons of unsound mind, appointed according to law, are hereby authorized, in behalf of their respective wards, to do and perform any matter or thing respecting the division of any lands,...
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