Shanklin v. Boyce

BOND, P. J.

*14 a ement. *13 1. In January,. 1911, the plaintiff filed his amended petition, making Richard E. Boyce and Grundy County, Missouri, defendants, alleging that he became insane on November 26, 1895, and remained in *14 that condition until July 15, 1910, when his reagon an(j understanding were fully restored; that at the time of his becoming insane he owned certain real estate described in his petition; that on December 28, 1896, one C. L. Berry, assuming' to be the guardian of the person and estate of the plaintiff, unlawfully and fraudulently took possession of said property and attempted to sell and convey the same to Richard E. Boyce, for the purported consideration of $18,000, and made and delivered to said Boyce-a guardian’s deed to said property, now of record in the Recorder’s office of Grundy County; that the grantee took possession of the property and continued so to hold the same in fraud of plaintiff’s rights; that said grantee, on March 6, 1917, borrowed certain county funds to the amount of $4,000, and executed a mortgage to secure the same, with full knowledge on the part of both said Boyce and the parties making the loan, of the insane condition of plaintiff at that time; alleged that these transactions were clouds upon his title, which he prayed should be set aside and annulled, and that possession of said property should be restored to him, and for an accounting of rents and profits and a judgment therefor.

A demurrer was overruled and after answer and adduction of evidence the trial court rendered a judgment in favor of defendants, from which plaintiff has duly appealed.

Notice II. Under the evidence in this case no question existed as to the fact and duration of the insanity of the plaintiff, nor as to the complete restoration of his faculties, as stated in his second amended petition. ^or *s ^ ^en^ec^ that the proceedings for the appointment of his guardian were had and conducted without any notice whatever to the plaintiff and without his personal presence in the probate court at the time of the alleged inquisition. That portion of Section 476, Revised Statutes 1909, which permits the appointment of a guardian or curator of insane per *15 sons, without notice given to the alleged insane person, was held unconstitutional in Hunt v. Searcy, 167 Mo. 158, after a full review of the authorities in this State and a clear discussion of the terms of the statute and the constitutional rights of persons affected thereby. The able author of that opinion buttressed his conclusion upon elemental propositions of law as enunciated by the Supreme Court of the United States, and in applying the result of these deductions to the construction of said statute (“Section 476: In proceedings under this article, the alleged insane person must be notified of the proceeding unless the probate court order such person to be brought before the court, or spread upon its records of its proceedings the reason why such notice or attendance was not required” R. S. 1909.) Held that its alternative provisions for notice were void. The court then added;

“It is too clear for argument that this qualification and attempted authority for depriving the accused of his liberty or property without notice violates both the State and Federal Constitutions, and does not constitute ‘due process of law.’

“But one reason can be suggested for not serving the person to be tried with notice, and that is, that as he is insane, a notice to him would be useless and meaningless. This argument begs the question; for the issue to be tried is whether he is insane or not, and to fail to give him notice, for this reason, is to forestall the very purpose of the inquest. But even if he be a raving maniac, he can. appear by attorney or through his friends and see that a proper person is appointed guardian or that proper care is given to his property and to his person. In addition, what if the person was not really insane at all, and without notice was adjudged insane and confined in an asylum and the management of his property given to another? In such contingency the propriety of notice would be manifest and if given would defeat the recovery of a judgment. It will not do to say that in the fifty-seven years that these provisions, not requiring notice, have *16 been on the statute books, no instance is recorded of any sane person being so adjudged and deprived of his liberty or property, and that instances of such outrages are found only in highly-colored and improbable stories in works of fiction; for the Marquis case (85 Mo. 615) is an instance in our own reports where a citizen was so adjudged insane, without notice, and at the very next term of court appeared and proved that he was not and never was insane. .But however the past experience may have been, the fact remains that the possibility of such an outrage being perpetrated is afforded by the statutory provisions referred to, and it is the duty of the courts, whenever the question arises, to prevent the happening of such a wrong, by declaring those provisions to be unconstitutional.” [167 Mo. 1. c. 182-3.]

We are contented with' the conclusion expressed in Hunt v. Searcy and adhere to the reasoning of that case, despite the fact of the decisions in other juris- , diction^ of a contrary nature quoted in the brief of respondent.

It follows that the appointment of Berry as guardian of plaintiff was void and vested him with no title to the property beclouded by his deed to defendants.

Equity ’ III. As it was necessary in this case to resort to evidence of extrinsic facts, in order to show that the deeds purporting to convey plaintiff’s property were and that the appointment of the guardian was void, plaintiff is not relegated to an action of ejectment to recover his property, but may resort to equity in the first instance. Thompson v. Pinnell, 237 Mo. 1. c. 552, et cases cited.]

The judgment in this ease is reversed and the cause remanded to be proceeded with in a manner not inconsistent with' the views herein expressed.

All concur.