66 Ala. 565 | Ala. | 1880
There is a good deal of testimony in this record, which we feel it our duty to disregard, under section 3058 of the Code of 1876. Leaving out of view the testimony thus ascertained to be illegal, there is no real testimony showing the circumstances under which the settlement of May 2d, 1867, was made, and the receipt of that date given. Harris, the decedent, was the guardian of Jackson, the com
Harris, the guardian, and Jackson lived near each other, ever after the settlement, until Harris’ death, in October, 1875. They were on intimate terms, and had money-dealings, some of relatively large amounts. At Harris’ death, he owed Jackson a borro wed-money debt of a thousand dollars. This was demanded and collected from the family of Harris, while Jackson asserted no claim to the money decreed to him, until he filed this bill in May, 1877, — ten years, less one day, after he had given his receipt. During all that time, he had claimed nothing as due him in virtue of the guardianship ; dealt freely with his former guardian; proved his confidence in him in many ways, and was heard to say, several years after the settlement, his guardian had dealt honorably by him. The death of Harris, the guardian, has rendered it impossible to make proof, which, it must be supposed, could have been made, if this litigation had come off during his life-time.
A guardian, dealing with his ward shortly after the latter becomes of age, takes upon himself the onus of proving that he dealt fairly, made full communication of every fact within his knowledge, calculated to influence the conduct of the latter, and that he obtained nothing from him without his free consent, given after receiving full information of all facts, bearing on his rights and the extent of them. This the
We think the present bill, and the evidence in this record, each fails to show a satisfactory reason for such long delay in the commencement of' the suit; and for that reason, the bill was rightly dismissed. There is even doubt if the case is sufficiently made out, aside from the delay in filing the bill.
Affirmed.