State ex rel. v. Brasher. of the Chancellor, whose duty it is to watch over and guard their interest scrupulously. Being in court, the presumption is, this duty was discharged, and the court satisfied of the propriety of holding an inquest, without any affidavit setting forth facts to authorize the proceeding. If the statute prescribes notice to the alleged lunatic, or other party for him, and does not provide for bringing him into court, then the statute governs and the presence of the party in court will not cure the defect. [Morton v. Sims, 64 Ga. 298.] And the presence in court of the insane party as dispensing with notice applies only when the party proceeded against is brought into court as a party to the proceeding in accordance with the statute and not where he is present merely casually or for another purpose. That our statute governing this procedure, section 476, Revised Statutes 1909, was fully complied with in this case I think is clear. The order of the court and writ to the sheriff are regular and under the hand and seal of the court, reciting therein the complaint that Sam Pollard is insane and incapable of managing his affairs and commanding the sheriff to take and keep him until the probate court shall convene to inquire into his sanity. The sheriff's return shows that he executed the writ by having the body of Sam Pollard before the judge of the probate court on March 7, 1917. On that day the inquisition was held by a jury and the adjudication was made. This shows that Sam Pollard was brought before the court on the day of the adjudication and that is sufficient. While there is no recital in the judgment that the .alleged insane person was present at the inquisition, the sheriff's return to that effect is of equal dignity and force. [Cloud v. Inhabitants of Pierce City, 86 Mo. 357, 367.] Besides the motion to quash the proceeding is not based on the ground that he was not present but that he was not voluntarily present. There can be no inference that he was denied the right to be heard in his own defense, no more than if he had received five days' notice under State ex rel. v. Brasher. sections 476 and 1790, Revised Statutes 1909. [Conway v. Robinson, 178 S. W. 154.] When it is shown that a person is brought before a court on the day the inquest is held on a charge of insanity and for the very purpose of having his sanity inquired into the presumption of right acting is indulged that the court afforded him an opportunity to be heard. Moreover, probate courts are courts of general jurisdiction in probate matters including the appointment of guardians of persons of unsound mind. In the absence of recitals of record or other competent proof to the contrary, the court must be held to have proceeded in accordance with the law and to have taken all the steps and found all the facts necessary to uphold its judgment. [Johnson v. Beazley, 65 Mo. 250, 256; Henry v. McKerlie, 78 Mo. 416; MeKenzie v. Donnell, 151 Mo. 431, 450, 52 S. W. 214; State ex rel. v. Dickman, 175 Mo. App. 543, 550, 157 S. W. 1012.] The above cases sufficiently answer the point that it is not shown that the person making the complaint as to Pollard's insanity is of kin or interested in his estate. As said in the last cited case, the statute, section 474, makes no such requirement, but if a mere stranger may not institute the proceeding but only one having an interest in the estate or personal safety of the person proceeded against, we cannot conclude that the informant had no such interest. As held in such case, that is a matter for the probate court, "but that question is not here open to our inquiry." This is a certiorari proceeding which brings up the record only of the probate court and the circuit court could only quash the record for errors appearing on such records. The presumption of right acting must be indulged and that includes a finding that the informant was entitled to institute the proceeding. [School District v. Yates, 161 Mo. App. 107, 142 S. W. 791; State ex rel. v. Wooten, 139 Mo. App. 221, 122 S. W. 1101; Conway v. Robinson, 178 S. W. 154.] Besides, it is shown on the face of the records that the informant is the public administrator of the county and by section 299 is also Picotte v. Mills. public guardian and by section 302 he is required to look after the personal estates of insane persons. This clearly qualifies him to be an informant in this kind of a proceeding. The statute, section 474, now requires the information to be sworn to, Laws 1917, p. 102, but such was not the case when this proceeding was had. The proviso added to section 474 by Laws 1903, p. 200, making the jurisdiction of the probate court in insanity proceedings depend on the person proceeded against being the owner of an estate, has been declared unconstitutional and the lack of such allegation is not material. [Redmond v. Railroad, 225 Mo. 721, 126 S. W. 159.] Finding no fatal error in the proceeding in the probate court adjudging Sam Pollard a person of unsound mind the judgment of the circuit court declaring the same void should be and is reversed. Farrington, J., concurs. Bradley, J., files dissenting opinion. LINA I. PICOTTE, Respondent, v. RUHAMAH B. MILLS, Appellant. Springfield Court of Appeals, March 11, 1918. 1. PAYMENT: Money Received: Mistake of Law or Fact. Ownership of land is a mixed question of law and fact, or rather a fact based on and resulting from the law, and sufficient to uphold an allegation of mistake of fact in an action for money paid under mistake for title to land owned by plaintiff. 2. 3. : : Mutual Mistake. Money received under a mutual mistake of fact as to ownership of land can be recovered in an action at law for money had and received. : : When one person sells land or a definite interest therein to another, and each party acts under the assumption and mistaken belief that the vendor has the interest and title he bargains to sell and for which he receives the money but such is not the fact, then the money has been paid under a mutual mistake of fact and may be recovered. Picotte v. Mills. 4. 5. -: Recovery of Money Paid by Mistake: Negligence. Where money is paid under mistake that is mutual, negligence of the party paying it does not bar his recovery thereof. -: Money Paid under Mistake: Defenses. That the person receiving money paid under mutual mistake of fact has spent it is no defense to an action to recover it. 6. DESCENT AND DISTRIBUTION: Family Settlement. The binding force of family settlements, like other settlements, is based on the fact of a compromise, a yielding of some real or bona-fide claim. 7. PAYMENT: Mutual Mistake: Quitclaim Deed. Where defendant and plaintiff were both mistaken in thinking that title to land was in defendant, whereas it was in plaintiff, and under such mistake plaintiff paid defendant for his interest, it was no defense to plaintiff's action to recover back such purchase money that defendant's deed to plaintiff of the property was only a quitclaim. Appeal from Greene Circuit Court.-Hon. Guy D. Kirby, Judge. AFFIRMED. Watson & Page and Williams & Galt for appellant. Patterson & Patterson for respondent. STURGIS, P. J.-This is an action for money had and received, the object being to recover back money paid by plaintiff to defendant under a mistake. The plaintiff had judgment and the defendant appeals assigning numerous errors. It will be quite impossible within the confines of an ordinary opinion to state all the facts and discuss in detail the twenty odd distinct propositions of law, many of them with several subdivisions, contained in appellant's able and painstaking briefs. We have examined these briefs with care but can only discuss such phases of the case as seem to us most important. Objection was duly made and defendant insists that the petition fails to state a cause of action. The material allegations (which will serve as a statement of facts also) are these: Thos. E. Hendrix died intes Picotte v. Mills. tate in Greene County, Missouri, leaving no lineal descedants. His heirs at law consisted of this plaintiff, his widow, since remarried, his father and mother, one brother, four sisters of whom defendant is one, and the descendants of one brother and sister deceased. At and prior to the time of his death this plaintiff and her said husband were the owners of an estate by the entirety, under a deed to plaintiff and her said husband jointly, in and to eighty acres of land in Greene County, Missouri, of the value of eight thousand dollars. This plaintiff was ignorant of such title and of the fact that after and by the death of her said husband she became and was the sole owner of said land. The defendant, and the other collateral heirs, were also ignorant of such facts. Acting on the assumption that the defendant owned an undivided eighteenth of said land by descent from said Thos. E. Hendrix, when in fact defendant had no interest whatever therein, plaintiff purchased defendant's supposed interest for $444.44 and paid defendant that amount therefor. On discovering said mistake the plaintiff demanded the return of the money so paid by her to defendant through mutual mistake for the interest that defendant did not own. The objection to the petition stating these facts is that plaintiff could only recover on a mutual mistake of fact and that the allegations as to the parties being ignorant as to the ownership of the land is an allegation of ignorance as to a matter of law. We shall see when we come to discuss the evidence, in connection with this allegation, that ownership is a mixed question of law and fact or rather is a fact based on and resulting from the law (Clark v. Carter, 234 Mo. 90, 100, 107, 136 S. W. 310), and is sufficient to uphold an allegation of a mistake of fact. The allegation that each party was ignorant of the fact that plaintiff was the sole owner of the land when making the deal and that the money was paid "through mutual mistake of fact" are sufficient to state a cause of action to recover back money paid through mutual mistake. This is es 200 M. A.-9. |