Carter v. Carter

141 S.W. 873, 237 Mo. 624, 1911 Mo. LEXIS 283

• Court: Supreme Court of Missouri
• Decided: November 29, 1911
• Status: Published

Opinion

BLAIR, C.

George G. Carter, a minor, by Ms curatrix, brought this suit in ejectment for an undivided one-fifth interest in five hundred and thirty-eight acres of land in Jasper county. The petition is in the usual form. The plaintiff is the sole heir at law of A. G. Carter, deceased, who at his death owned a one-fifth interest in the lands in suit: Harriet E. Carter is the mother and curatrix of plaintiff and widow of A. G. Carter.

In 1890, A. G. Carter and the defendant S. E. Carter, each owning a one-fifth interest in the lands in suit, obtained a lease on the remaining three-fifths for a term of fifteen years, with the option to renew for ten years. In 1903, A. G. Carter executed a lease on one hundred and sixty acres of the tract for twelve years to S. E. Carter. In November, 1904, Harriet E. Carter executed a quitclaim deed to defendant Byrd, and in November, 1905', Harriet E. Carter, individually and as curatrix of plaintiff, executed to defendant Byrd a lease on that part of the tract in suit not included in the lease from A. G. Carter to S. E. Carter. In February, 1906, Harriet E Carter executed a deed as curatrix of plaintiff purporting to convey to Byrd the interest of her ward in the land in suit, receiving as consideration therefor the sum of five thousand three hundred and eighty dollars, which she accounted for as curatrix of plaintiff. Byrd seems also to have acquired title to the other four-fifths of the whole tract.

There was evidence that the price obtained by the curatrix for her ward’s interest was far below its value and some effort was made to show that S. E. Carter, the uncle of plaintiff and father-in-law of Byrd, had misled the curatrix as to the value of the land.

With respect to the deed of the curatrix to Byrd, the records of the probate court were offered and dis-' closed that the November, 1905, term of the probate court of Jasper county adjourned to court in course January 8>, 1906, and that the next regular term of court convened February 12, 190’6. On February 7, 1906, the following' appeared: “Jasper County Probate Court. Wednesday, February 7, 1906. Call day of court term, 1906. Court convened pursuant to the order of the judge in vacation. In the matter of the estate of George Carter, a minor.” Then followed the order of sale, pursuant to which the curatrix attempted to sell her ward’s interest to Byrd. °

There was no order calling a special term of court, nor was there any minute or notation of any such order of record or otherwise. These facts were shown by the record of the court and the testimony of the clerk. The order approving the sale, made at the regular February, 1906>, term of the court, recites that the order of sale was “made at the November (special), 1905, term thereof.” There was evidence tending to show the forfeiture of the leases executed by A. G. Carter and by Harriet E. Carter, curatrix, to S. E. Carter.

The judgment was for plaintiff, subject to dower, the curatrix’s deed being declared invalid and the leases forfeited. The consideration was ordered repaid to Byrd, but he was required to account for royalties accruing prior to the bringing of this action. -

From the judgment all parties appeal.

1. The order of sale upon which the deed of the curatrix to Byrd is grounded was made after the adjournment of the November, 1906-, term of the Jasper county probate court and prior to the convening of Jhe February, 1906, term, and without - adjournment to the day upon which it was made.

It is settled law that the “orders and judgments of the probate courts, relating to matters within their jurisdiction, will be presumed to have been regularly made and entered until the contrary is made to appear” (Macey v. Stark, 116 Mo. l. c. 494), that such orders and judgments are no more subject to collateral attack than tbe orders and judgments of courts of general jurisdiction (Cox v. Boyce, 152 Mo. 576; Bray v. Adams, 114 Mo. l. c. 492), and that, “in tbe absence of any showing on the subject it should be presumed” that a special term of the probate court, at which an assailed order or judgment of the court was made or entered, was properly and lawfully held. [State ex rel. v. Nolan, 99 Mo. 569.]

Into this case, however, presumptions born of silence cannot come, since the record of the probate court is here and speaks the facts. Had not the record been put in evidence it would have been presumed sufficient to support the order of sale (Price v. Real Est. Assn., 101 Mo. l. c. 116); but since the record is in evidence, it cannot well be presumed to be other than it is. [Freeman on Judgments, sec. 125; Ely v. Tallman, 14 Wis. l. c. 33; Wade v. Hancock, 76 Va. l. c. 625.]

The entry which purports to be an order of sale is preceded by the recital that “court met pursuant to the order of the judge in vacation,” but no such order was entered on the records or elsewhere, nor had any minute or memorandum thereof been made by judge or clerk. Judges possess no inherent power to convene their courts, as such, in vacation. Such power, unless created by constitutional or statutory authority, does not exist.

It is not asserted that the article relating to the general powers and duties of courts of record (Art. 1, chap. 35, Bu S. 1909) confers any such power as the judge of the Jasper county probate court attempted to exercise, but it is insisted that section 4060, Bevised Statutes 1909’, authorized the course pursued. That section relates to probate courts and reads as follows:

“Said court shall hold four terms annually, commencing on the second Monday of February, May, August and November, and may hold special and adjourned terms at any time when required: Provided, however, that in all counties in which courts for the transaction of probate business are not held in more than one place, then in such cases courts shall be held at the times and places now designated or provided by law; said courts may alter the time for holding their stated terms, giving notice thereof in such manner as to them shall seem expedient.”

The question presented is whether ' the clause, “and may hold special and adjourned terms when required,” is to be construed to mean that the probate judge, without adjournment to a given day, without a previous order and without notice, may seat himself upon the woolsack and by mere force of transacting business which cannot be transacted in vacation, call into being a term of the probate court.

Before the statute is construed to invest' the probate judge with such untrammeled power, it ought to be subjected to somewhat careful scrutiny. No such power is given the circuit judge, nor the county judges. Both the circuit and county courts may be convened only by authority of express statutes.

Long prior to the enactment of section 4060 (Laws 1877, p. 230) the statutes (R. S. 1909, secs. 3869, 3870) had applied the words “special” and “adjourned” to terms of courts of record held' pursuant to orders made in term time and had used them interchangeably. In 1877, this court held that a session of the circuit court designated on the record as a special term would, under certain circumstances, be presumed, in the absence of a contrary showing, to be a term held pursuant to an order or proclamation of adjournment and not a special term called in vacation under section 3871, Revised Statutes 1909. [Hicks v. Ellis, 65 Mo. 176.]

Further, numerous sections of the statutes (Secs. 9, 10, 25, 29, 31, 92, 126', 136, 404, 405, 406, 407, 409, 410, 411, 412, 413, 415', 424, 437, R. S. 1909] specifically authorize the probate judge to transact designated business in vacation and other sections (475', 534) provide for the calling of special terms in vacation in certain cases, all of which would seem unnecessary if the probate court is in session whenever it assumes to act.

It is to be observed, also, that section 4060 does not provide that the judge of the probate court may call or hold special terms when necessary, but that “said court . . . may hold special and adjourned terms at any time when required.”

In every other case which has come under our observation in which the courts of this State are empowered to convene during vacation without previous order of adjournment during term time (Secs. 3871, 4038, 3902, 475, R. S. 1909) provision is made for the calling of the special term by the judge or majority of judges of the court in question. In the case of this court (Sec. 3902, R. S. 1909) both the terms held by order of the court in term time and those called by a majority of the judges in vacation are designated as “special terms.”

Section 4060 authorizes “said court” to hold special terms as required. “An order made in vacation is not an order of the court as there can be no such thing as a constructive session of a . . . court” (Cook v. Penrod, 111 Mo. App. l. c. 137), and we think that the provision that the court may hold special and adjourned terms when required necessarily presupposes some action on the part of the court as such and falls short of investing, the judge with the power to convene his court at will.

Interpreting the clause in question in section 4060 in the light of the legislative provisions referred to and the cases cited, we are of the opinion that the probate court of Jasper county was not in session at the time the order of sale, upon which the deed to Byrd depends, was made. A contrary holding would, in effect, mean that the probate courts of this State are always in session. This we are unable to harmonize with the legislative will as expressed in the statutes cited.

Numerous cases are cited as supporting a contrary conclusion. None of them go to the length of holding that a court constituted as are our probate courts, possesses the inherent power to convene in vacation without an order of adjournment to that end, nor would we follow them if they did so hold.

Those cases holding that the records of a court cannot be attacked collaterally by parol are not in point, since no such attack was made in this case. The clerk’s testimony was not open to this objection, nor would it have made any difference had the clerk found a vacation order or minute of the judge attempting to convene a special term of court, since we hold no power is vested in the probate judge to so convene his court, save in special cases which do not include that in hand.

Nor does the fact that Harriet E. Carter, the curatrix, appeared and attempted to file her jDetition for order of sale on February 6th estop either her or her ward from asserting that no court was in session on that day. The trouble with the argument on this head is that it assumes the existence of a court, in session at the time mentioned, conceding merely its defective organization. But no such court existed or could have existed, in the face of the record previously made by the court itself, under the construction we have given the statute. It is not necessary to discuss those cases in which the appearance of parties at a term held pursuant to the irregular exercise of a statutory power to call such term is held to estop them' to question the validity of proceedings at such term. No such question is presented by this record. Nor are those cases in point which uphold the exercise by the judge in vacation, under specific statutory authority, of powers usually exercisable only in term time.

An order of sale of a? minor’s real estate can be made only by tbe court lawfully in session, and neither the judge, nor the curatrix, nor both of them, can create a term of court for that purpose. Nor can a term of the probate court be estopped into existence.

The order of sale was a nullity and consequently the deed of the curatrix to Byrd was void.

2. In view of what is said in the preceding paragraph, it becomes unnecessary to examine the correctness of the conclusion reached by the trial court that the deed to Byrd was void by 'reason also of fraud practiced in procuring it.

3. The fact that defendant Byrd had purchased and owned the dower interest of A. 'G-. Carter’s widow in the one-fifth of the tract which this suit is brought to recover, was no defense (Sell v. McAnaw, 138 Mo. l. c. 273) nor does the judgment, as we construe it, affect in anywise defendant Byrd’s right and title to such dower interest. The judgment is to the effect that “plaintiff have and recover possession of said premises, subject to the dower interest of plaintiff’s mother. ’ ’ This means nothing more than that plaintiff’s possession is subject to that interest whether it is still hers or has been conveyed. The phrase, “of plaintiff’s mother,” is descriptive of the source of the interest and not declarative of the present ownership. If defendant Byrd has purchased the dower interest, the judgment leaves plaintiff’s possession subject to that interest in Byrd’s hands.

4. The leases from A. G-. Carter and from Harriet E. Carter, curatrix, contained a clause providing that “any failure to comply with and perform the requirements of this lease in good faith at any time shall end and determine the same and the said parties of the first part may declare an ouster, and re-enter upon and hold said demised premises.”

Ejectment will lie for the recovery of premises held under leases of this character when the lessee fails in Ms duty to observe Ms covenants. [Brooks v. Gaffin, 192 Mo. 228; Id., 196 Mo. 351.] There was substantial evidence tending to show a breach of the conditions of the leases, and the court’s judgment for possession involved a finding that the leases were forfeited. That finding cannot be. inquired into here. [Scanlan v. Gulick, 199 Mo. 449.]

5. A lease from S. E. Carter to one Davis, executed in 1904, covering eighty acres of the land in suit, was admitted in evidence over the objection and exception of defendants. No complaint of this ruling is made in the briefs, but it is insisted that the judgment must be reversed because Davis was not a party defendant. The evidence does not show that Davis was in possession under the lease mentioned at the institution of this suit. Consequently, there was no need of joining him as party defendant. Further, his rights, if any, are not affected by the judgment and no question concerning them can be determined in this case. Neither does it appear that Class, also mentioned in the evidence, was in possession of any part of the land in suit when the suit was brought.

6. It is urged that it was error to render a joint judgment against the lessor and his tenants, the latter being in possession of different parts of the property sued for. No judgment for damages, rents or profits, was rendered except against Byrd, who was the lessor, and as to him the judgment merely requires him to account for royalties received. Assuming that he should not have been joined with his lessees in the first instance, still, since he answered without objection on that score and prayed and obtained affirmative relief, he cannot now complain. [Mann v. Doerr, 222 Mo. l. c. 13, et seq.] Nor can the lessees, not having raised the question below, be heard to insist upon it here. [Sutton v. Casseleggi, 77 Mo. 397.] In view of these considerations, the effect of the amendment of 1889 to section 1732, Revised Statutes 1909', with regard to the propriety of joining the lessor and tenant in ejectment need not be discussed, nor is it necessary to discuss in this case the ruling in Mann v. Doerr, supra, that the lessor cannot be joined as defendant without his consent unless in actual possession. [See Cox v. Jones, 229 Mo. l. c. 60-61.] However, in view of the conclusion indicated in paragraph eight, infra, the question discussed in this paragraph cuts but little figure in the case.

7. The plaintiff appealed from that part of the judgment which adjudges the repayment to Byrd of the consideration for the deed executed by his curatrix and herein held invalid. Under the circumstances of this case, and since the plaintiff has become the-beneficiary of the payment, the point is ruled against him. [Bone v. Tyrrell, 113 Mo. l. c. 187.]

8. There is no evidence that defendants S. E. Carter and S. Kyger were in possession of the land at the time of the institution of the suit. Their answer, a general denial, put the possession in issue (Llewellyn v. Llewellyn, 201 Mo. 303) and the demurrers to the evidence separately offered by them should have been sustained. In accordance with the power vested in this court by the statute (Sec. 2083, R. S. 1909; Stotler v. Railroad, 200 Mo. l. c. 150; Bensieck v. Cook, 110 Mo. l. c. 183; State ex rel. v. Tate, 109 Mo. 265), we reverse the judgment as to the defendants S. E. Carter and S. Kyger.

In all other respects the judgment is affirmed.

Broivn, G., concurs.

PER CURIAM.

The foregoing opinion of Blair, C., is adopted as the opinion of the court.

All the judges concur.