Hines v. Seibels, 86 So. 43

86 So. 43 | Ala. | 1920

The bill prayed injunction against a personal representative to prevent the prosecution at law of an action for damages for the wrongful death of intestate where settlement by compromise had been made with the sole heirs and distributees.

Damages collected in action brought under the homicide act for the wrongful death of an intestate vest exclusively in the distributees of the estate without administration. The administrator is only the holder of the naked title, and this title will not prevail against one to whom the equitable title and rightful possession has passed. Kennedy v. Davis, 171 Ala. 609,612, 55 So. 104, Ann. Cas. 1913B, 225. Neither have creditors a claim, right, or title to or interest in the damages. Griswold v. Griswold, 111 Ala. 572, 577, 20 So. 437.

Where a person liable for the wrongful death of another compromises therefor, and obtains a release from the decedent's sole heir and distributee, who is under no disability to make such settlement and give such release, and thereafter the administrator of the decedent's estate brings suit for such wrongful death, the release is not solely available at law, but in a court of equity, as the basis for a bill to enjoin a suit at law for such wrongful death. Kennedy v. Davis, supra.

Such is not the rule as against a sole legatee and distributee under a disability — as infancy — where the compromise and release are made, but same have not been affirmed after removal of the disability. That is to say, such rule does not obtain against a minor. Rogers v. De Bardeleben Coal Iron Co., 97 Ala. 154,12 So. 81; T. C., I. R. R. Co. v. Hayes, 97 Ala. 201,12 So. 98; Collins v. Gillespy, 148 Ala. 558, 41 So. 930, 121 Am. St. Rep. 81; McLaughlin v. Beyer, 181 Ala. 427,61 So. 62; Smith v. Redus, 9 Ala. 99, 44 Am. Dec. 429; 14 Rawle C. L. 288, § 56. The bill avers the minority of the sole heirs and distributees when the alleged settlement was made, the release executed, and the bill filed. These facts were presented by appropriate grounds of demurrer. Construing the bill most strongly against the pleader, it affirmatively appears that the parties with whom the settlement was made were minors. The bill fails to allege the age of the minors, and for aught appearing they were under the age of 7 years. Pleadings are taken against the pleader, in equity as at law. Strickland v. Gay, 104 Ala. 375,16 So. 77; Lewis v. Mohr, 97 Ala. 366, 11 So. 765; Stubbs v. Leavitt, 30 Ala. 352; Lockard v. Lockard, 16 Ala. 423. That is, the equity of the bill will be considered from the facts as the plaintiffs present them (Smith v. Teague,119 Ala. 385, 24 So. 4), and no advantage to complainant can be claimed from vague and indefinite allegations in his bill. Underhill v. Mobile, etc., Co., 67 Ala. 45.

Complainant says in argument that, admitting the settlement was not binding on the infants, only they or the chancery court for them have the right of avoidance. The complainant cannot claim the right to ratify the agreement and maintain this suit for affirmance or disaffirmance against the minors. It has been held in other jurisdictions that ratification is as much a personal right to an infant as is disaffirmance. For analogous authority, see Bell v. Burkhalter, 176 Ala. 62, 57 So. 460; Jefford's Adm'r v. Ringgold Co., 6 Ala. 544, 547; Shropshire v. Burns, 46 Ala. 108, 115; 14 Rawle C. L. 250, 251, § 29; 43 L.R.A. (N.S.) 717, note.

Bills to enjoin an infant's breach of contract for personal services have been held to be without equity. In Cain v. Garner, 169 Ky. 633, 639, 185 S.W. 122, 125 (L.R.A. 1916E, 682, Ann. Cas. 1918B, 824), the court said:

"It is a simple contract for the personal services of an infant, for a stipulated compensation to the father. The case, therefore, is reduced to the simple proposition of enforcing the executory contract of an infant. It is elementary law that, except for necessities, an infant may avoid any contract made by him during infancy. 1 Bl. Com. 465; 22 Cyc. 580; Breckenridge v. Ormsby, 1 J. J. Marsh. 236, 19 Am. Dec. 71; Watson v. Cross, 2 Duv. 147; Forsee's Adm'r v. Forsee, 144 Ky. 171,137 S.W. 836."

See, also, Aborn v. Janis, 62 Misc. Rep. 95,113 N.Y. Supp. 309, affirmed without opinion in 121 A.D. 923, 106 N.Y. Supp. 1115.

Though the minor has wasted or spent the consideration received, he may avoid a settlement made during minority, without offering to return the money or property received by him or to restore the status quo. Any other rule would deprive an infant of "that protection against his improvidence and incapacity which the law designed." Bell v. Burkhalter,176 Ala. 62, 66, 57 So. 460, 461.

Aside from this, the cestuis que trustent in instant suit in equity are not made parties to the bill, as required by the rule obtaining in courts of equity. Town of Carbon Hill v. Marks, 86 So. 903;¹ Lebeck v. Fort Payne Bank, 115 Ala. 447,453, 22 So. 75, 67 Am. St. Rep. 51; Stone v. Hale, 17 Ala. 557, 52 Am. Dec. 185; Walker v. Miller, 11 Ala. 1067, 1068; Sprague v. Tyson, 44 Ala. 338; Nunnelly v. Barnes, 139 Ala. 657,36 So. 763.

The judgment is affirmed.

ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.

¹ Post, p. 622.