Hauenstein v. Gillespie

73 Miss. 742 | Miss. | 1896

Woods, J.,

delivered the opinion of the court.

We find no error in the rulings on the evidence of the learned special chancellor who presided on the trial in the court below. In each instance complained of by appellant, it clearly appears that the original books of entry were produced before the commissioner who took the depositions of the witnesses, and that correct copies of the entries were taken from such books. It would be so very inconvenient to make the books themselves exhibits to the answers to interrogatories as to render that course practically impossible; besides, the books were the private property of the witnesses, and it would be manifestly improper to require them to part with their books, when none of them are in anywise interested in the litigation. These remarks apply with equal force to the action of the court in receiving the copy of the receipt taken from the guardian by Messrs. Yerger & Percy. Mr. Yerger produced the original receipt before the commissioner, and, on his examination, furnished a correct copy of this receipt as the exhibit to his answer to one of the interrogatories. It is not contended that true copies were not given in each instance, but only that the books and the receipt themselves should have been made exhibits to the depositions. We are unable to see any good reason to support this contention of appellant’s, and the reasons against it lie upon the surface, and two of them have already been adverted to by us.

We pretermit any reference to, or examination of, any other questions argued as to the action of the court in any matter antecedent to the final decree, and come at once to- the vital inquiry in the case, viz.: Are the appellants estopped by the recitals of the bond which they signed as sureties, to deny the appointment as guardian of their principal ?

By their act in signing this bond of the guardian of the lunatic, he was enabled to take into his possession the entire estate of the lunatic, and for about fifteen years, by virtue of their voluntary act, he retained the exclusive control, management, and disposition of the estate and its income. Because of their suretyship on his bond, he, year by year, received the rents and profits of the lunatic’s estate; he sold lands of the lunatic and collected the purchase money, and he instituted proceedings in the courts of the country, on behalf of the lunatic, and carried to successful termination such litigation, and received as the fruits thereof hundreds of dollars. Now, when the guardian is dead, when the lunatic is in need of his own, and when large balances are found to be demandable from these sureties, they seek to prevent any recovery by the unhappy lunatic, whose funds have been wasted or misapplied by the guardian, on the ground of the invalidity of the guardian’s appointment. By their bond and its recitals, upon every principle of equity, they are estopped to deny the validity of that appointment. The effort of the appellants is to show the invalidity of the guardian’s appointment by disputing the recitals of their bond — the very instrument of their own making, by which the guardian took possession and control of the estate of the lunatic, and part of which has been wasted or misapplied and lost by the guardian, and for which it is now sought to hold these sureties liable — and this, by all right reason, and in all good conscience, they ought not and cannot be permitted to do.

Our only hesitation in making this declaration arises from the fact that forty-five years ago, in Thomas v. Burrus, 23 Miss., 550, it was held that a surety on a guardian’s bond was not estopped by the recitals of his bond to deny the validity of his principal’s appointment. This decision is not only clearly opposed to the overwhelming weight of authority, but is out of harmony with many other decisions of this court which deny to an officer and the sureties on his official bond the right to dispute the recitals of the officer’s bond and question the validity of his appointment to office. We are utterly unable to conceive any reason, good or bad, for estopping a sheriff to dispute the recitals of the bond whereby he was enabled, to seize his office, and yet refusing to recognize the doctrine of estoppel in similar cases where an administrator or guardian has incurred liability. In this case, where the lunatic is seeking to hold to liability the sureties on his guardian’s bond, the real inquiry is, not was the guardian’s appointment regular and valid, but is this bond — executed by these sureties, whereby their principal acquired authority to take, and in fact did take, into possession and control the lunatic’s estate — without equitable or legal obligation to require the guardian, and those who bound themselves, to answer for his faithfulness ? It affronts justice to assert that one may take into his hands the estate of another, under the forms of law, giving bond faithfully to administer it and account on the conclusion of his stewardship, and then successfully deny liability for the property thus in his hands, because of some legal infirmity in his appointment. We repeat, the question is not whether the appointment was valid, but whether the guardian and his sureties shall be bound by the terms of their bond? We have no doubt as to their liability.

So far as our research has extended, this case of Thomas v. Burrus is without the support of any other single decision, and should not longer be allowed to stand, if the doctrine of equitable estoppel is not to be shorn of its strength by the courts of the country. See Bigelow on Estoppel, 361, and references in note 3; Herman on Estoppel, 771, and cases cited in note 5; 8 Pick., 387; 73 Me., 163; 33 La. Ann., 732; 3 Gill & J., 103; 9 Ired., 250; 78Ind., 68; 82Ind., 126; 25 Ga., 696; 16 Ohio St., 455. No rule of property was created by Thomas v. Burrus, and we unsettle the property rights of no one, acquired in reliance upon that case. It is unsound and is overruled.

Affi/r'med and remanded.