35 S.E. 240 | N.C. | 1900
CLARK, J., did not sit. The action was instituted at the instance of Mrs. Mary M. Perry, who claimed to be a creditor for a large amount, and she was one of the heirs at law. The other heirs at law of Mrs. Lucy H. Massenburg, including her son, B. B. Massenburg, also appear as plaintiffs, although they object that their names were so used without their consent — the record does not show that their names were stricken out. This is an action to set aside a deed made by Mrs. Lucy H. Massenburg to the wife and children of her son, B. B. Massenburg. The only consideration named in the deed is the nominal sum of $5, and love and affection. The plaintiffs contend that at that time the grantor was largely indebted beyond the value of her remaining estate, and that therefore the said deed is void as to creditors. The plaintiffs are the administrator and heirs at law of the grantor, including B. B. Massenburg, while one of the heirs is the complaining creditor, in whose interest the suit appears to have been brought. With the exception of this creditor, all the heirs disclaim any interest in the suit and allege that the use of their names as plaintiffs was wholly unauthorized; but their names were not stricken out, and they still appear as plaintiffs of record. B. B. Massenburg, one of such plaintiffs, was appointed guardian adlitem for his children, the infant defendants. This we think was a fatal error which can not be cured by any evidence of good faith or want of injustice. It makes no difference that Massenburg accepted and answered for one defendant and refused to act for the others. While he (134) remained even a nominal plaintiff of record he was utterly disqualified to appear for any of the infant defendants. The fact of his partial acceptance of an unlawful trust, and even its most faithful performance, does not alter the principle. We do not mean to impute in the slightest degree bad faith to any one, certainly not to Massenburg, who is defending the interests of his children with an energy and tenacity worthy of a father's love; but for some purpose of her own the complaining creditor made him a plaintiff, and she must now abide by the legal results of her act.
The court has no higher duty than the protection of infant defendants, and there can be no trust more sacred than that of a guardian, who must be absolutely free from any interest or motive that can possibly interfere with the faithful performance of his duties. If he has any interest at all in the suit it must be thoroughly consistent with that of his wards. Even his attorney must be equally disinterested, and a mere colorable interest is a sufficient disqualification for either, if at all *79
adverse. Moore v. Gidney,
We may say here that the object of the appointment of a guardianad litem is to protect the interest of the infant defendant, to which protection he is entitled at every stage of the proceeding; and we can not approve of an order appointing a guardian ad litem nunc pro tunc. If it is sought thereby to bind the infant by something already done when he had no opportunity for defense, it is manifestly (135) unjust; while if it has no such effect we can see no necessity for making it retroactive.
We can not too strongly impress upon the profession the necessity, and certainly the advisability, of a strict compliance with the law when dealing with the rights of infants, and, we may add, of married women. In the case at bar there can be no question of estoppel, as our decision is not based upon any supposed right or exemption of B. B. Massenburg himself, but purely upon the absolute necessity of affording the proper legal protection to the infant defendants. As the essential facts clearly appear upon the face of the record, they are not affected by the recitals in the judgment.
As we feel compelled to order a new trial, we do not deem it necessary to pass upon all the exceptions, which may not come before us again, or may come in a different light; but we think that the issue should have been framed so as to show whether Mrs. Massenburg, when she made the deed, retained property of sufficient value at that time to pay all her indebtedness. In other words, the issue should relate to her pecuniary condition at the time of making the deed.
New trial.
Cited: Holt v. Zigler,
(136)
