Smith v. Denny , 34 Mo. 219 ( 1863 )

Bates, Judge,

delivered the opinion of the court.

The petition states, that, in 1842, Rachel Denny, by deed, conveyed to John Denny, as trustee, two slaves ; that in said deed it was stipulated that Mary Smith should have the actual use, management and control of the said slaves as long as she should live, and that said slaves should descend to the children of the said Mary Smith, at her death to be their property ; that Mary Smith died, leaving an infant child, Rachel Ann Smith, who had also died' whilst still a minor, leaving the plaintiffs her heirs and legal representatives, and that, after the death of Rachel Ann Smith, one of said slaves came to the possession of the defendants John Denny, Rachel Denny, Clarissa Viant, acting by her guardian Valentine Becker, and Elvira Fisher, acting by her guardian Lorenz Fisher, who sold said slave on the 1st day of January, 1857, and received the proceeds of the sale and appropriated it to their own use ; and that the slave has been removed beyond the jurisdiction of the court: that since said sale said Clarissa has become of age and intex-married with Gustav Bruere, and that they have received from Valentine Becker, guardian of said Clarissa, a portion of the money so received from the sale of said slave; that since said sale Rachel Denny died testate, and that John Denny and Raphael Denny are her executors. The petition also stated, that, on the 25th day of August, 1851 John Denny was appointed guardian of said Rachel Ann Smith, and continued to act as such guardian until the death of the said Rachel Ann Smith, who died in the year 1853; and on the 11th day of March, 1857, the said John Denny, made a final settlement of his guardianship in the County Court of St. Charles county, but no distribution or partition was made by said County Court of the personal estate of the said Rachel Ann Smith. The petition in setting forth the style of the cause, named as the defendants, “ John Denny, Raphael Denny, Gustav Bruere, and Clarissa Bruere his wife, and Elvira Fisher, and Lawrence Fisher ; ” and the petition concluded as follows : “ Plaintiffs, therefore, say that by reason of the premises they are entitled to have and recover from the said defendants the value of said slave Sarah sold as aforesaid, and defendants became and are liable to pay the same, which said slave on the 1st of January, 1857, was of the value of one thousand and thirty dollars. Said plaintiffs ask judgment for said amount of one thousand and thirty dollars, with interest from the 1st of January, 1857, together with costs.”

Demurrers were filed to the petition, and were sustained as to Gustav Bruere and wife, and as to Elvira Fisher and Lorenz Fisher, and overruled as to John Denny and Raphael Denny, and judgment given against them, (and also, through' inadvertence, against Gustav Bruere and Lorenz Fisher.)

The demurrers of John and Raphael Denny should also have been sustained. As to Raphael Denny, there is no show of a case against him at all. The petition does not in any way connect him with the alleged possession and sale of the slave and conversion of the proceeds, and yet it sought judgment against him individually, and not as one of the executors of Rachel Denny. As to John Denny, the petition shows that at the time of the death of Rachel Ann Smith in 1853, he was her guardian, and made final settlement of his guardianship in March, 1857, (after the sale of the slave.) Thus, as shown by the petition, he was lawfully in possession of the slave as of the estate of his deceased ward at the time of the sale, and was under a legal obligation to account for the same in the County Court; and having afterward made a final settlement, the law presumes that in that settlement he did account for all the property of his ward which had come to his possession, including the slave. Thus the petition itself shows that a court of competent jurisdiction has already adjudged the matter in controversy as to John Denny, and the plaintiffs have no ground of action against him. We are not warranted in giving an opinion upon a case not made by the record, and therefore we give no opinion of the precise effect of a judgment of the County Court upon the final settlement made by a guardian as a bar to the claims of distributees: it may be just that the plaintiffs should have leave to amend their petition; and, therefore, the cause will be remanded.

Judgment reversed and cause remanded.

Judges Bay and Dryden concur.