McCarty v. Rountree

Ryland, Judge, delivered the opinion of the court. McCarty and wife brought their civil action in the Circuit Court of Polk county, against Rountree, for the recovery of a negro woman and her two children, slaves. The plaintiffs suffered a nonsuit under the instructions of the Circuit Court — - moved to set the same aside, but failing in their motion, they excepted to the opinions of the court, and bring the case here by appeal. From an examination of fact? set forth in the record, the main question in the case involves the power of the father, as natural guardian, to manage and control the personal property of his child, which has come to the child from any other person than the father, before he has given bond, as required by our statute. It is well settled that the guardian by nature has, at common law, power over the person only, and not the personal estate of the ward. The question here depends on the construction of our statute. The first section of the act concerning guardians, curators and minors, (R. O. 1835, p. 294,) the law in force when the plaintiff’s wife was brought to this state by her father, is as follows : “In all cases not otherwise provided for by law, the father, while living, and after his death, and when there shall be no lawful father, then the mother, if living, shall be the natural guardian of their children, and have the custody and care of their persons, education and estates ; and when such estate is not derived from the parent, acting as guardian, such parent shall give security, and account as other guardians.” Section 7 of .the same act: “ All guardians and curators appointed by the courts, or chosen by the minors, shall be twenty-one years of age, and shall, respectively, before entering upon the duties of their offices, give bond, with security, to be approved by the court before which they shall be appointed or chosen, to the state of Missouri, for the use of the minors respectively,” &c., &c. [349] The first and seventeenth sections of the act of 1845, concerning guardians and minors, (R. O. 1845, p. 547-550,) are very similar to the first and seventh sections of the act of 1885. The plaintiffs contend that, under the provisions of our statutes, though the father or mother is declared to he the natural guardian of Ms or her child, and as such has the custody and control of his person and his education, and is entitled to have the control and management of his estate; yet, before such natural guardian can have any control or power over the estate of his ward, he must enter into bond and security to the state, as is required to be done by other guardians, unless the power and control be exercised only over such property as may be derived by the ward from such natural guardian ; that is, whenever the minor child becomes the owner of property ■through any other person than its natural guardian, such natural guardian must first give bond and security, as the law requires of other guardians, before he has any control or power over the estate of his child and ward. The respondent, on the other hand, contends that the father, as natural guardian, under our statute law, has the control and power over the estate of his child, no matter from what source derived, and 'can manage and control such estate of the ward, without first entering into the bond with security, as is required by other guardians — consequently, that he can sell and make way with his child’s property, being responsible to such child only. The plaintiff’s counsel very correctly remarks that children are the favorites of courts of justice, and being incapable of protecting themselves, are under the peculiar protection of the courts of the country. The courts, then, should construe the statutes designed to protect the rights and estates of minors, liberally, so as to promote the object of such statutes, as far as can be done consistently with their phraseology. 1. In the opinion of this court, the father, as natural guardian of his child, has no right to control or dispose of the property [350] of the child, derived from any other person than the father, until he has given bond with security under the statute. Look at the last clause of the first section of the act of 1835 — guardians, &c., above quoted. The first part of the section gives “the custody and care of the persons, education and estate of the children” to the natural guardian, and the last clause qualifies this power, by declaring “ that, when such estate is not derived from the parent acting as guardian, such parent shall give security, and account as other guardians.” Now this very same statute, in section seven, expressly requires that “ all guardians and curators appointed by the courts, or chosen by the minors, shall be twenty-one years of age, and shall, respectively, before entering upon the duties of their offices, give bond, with security, to be approved by the court,” &c. — “ shall give security, and account as other guardians.” How and when do other guardians give security? By going before the court having probate jurisdiction, or the court appointing them, and giving their bonds in double the value of the ward’s estate or interest committed to their care, with security to be approved by the court, payable to the state of Missouri, for the use of the minors, before they shall enter on the duties of their office. Then, under this first section, as the natural guardian, the father must give his bond with security, like any other guardian, before he can have any power cr control over his child’s estate, other than what he has himself given to his child. He, as the natural guardian, cannot dispose of his child’s property — has no power over it — no authority to sell it, until he gives his bond, as required by the act of the legislature. This is the plain and obvious meaning of the statute. Any other and different construction would place the estates of minors, in the hands of-their natural guardians, to be wasted or spent, as circumstances might urge, without any benefit to the minor, or any available responsibility of the natural guardian. 2. This view of the subject settles the point raised by respondent’s counsel, about the making a demand before bringing [351] the suit. The natural guardian having no right, before giving bond, to dispose of his daughter’s slave, could pass no title to the slave by his individual act of sale to Campbell & Bunch, nor did they pass any title by their sale of the slave to defendant. The plaintiffs might, therefore, well sue, without demand being first made. The point raised by the respondent about fraud, as to the creditors of the father of plaintiff’s wife, that is, the creditors of Abner E. Noll, has no force in it. The grand-father gives to his grand- daughter a negro girl: how can this affect the creditors of the father of the grand- daughter ? Have they any cause of complaint that a child of their debtor should receive a donation from a person who owes them nothing ? Upon the whole case, this court is of opinion, that the court below erred in refusing to give proper instructions, and in giving illegal instructions. Its judgment is therefore reversed, and this cause is remanded, to be further proceeded in, after setting aside the nonsuit, in accordance with the views and principles contained in this opinion. The other judges concurring.