152 Ky. 310 | Ky. Ct. App. | 1913
Opinion op the Court by
Affirming on original and cross .appeals.
On .September 5, 1892, Henry Hall qualified as guardian of Jacob Clark ,and Alice Clark, with J. P. Layne and P. H. Morrell as .sureties on .his bond. Jaoob Clark and his sister were the only children of, and inherited certain land and other property from their father, John Clark, who died in the year 1878. John Clark also left a widow, Sarah Clark, .who afterwards intermarried with Henry Hall. Alice Clark died on September 2, 1897, unmar
Plaintiff, Jacob Clark, brought this action .against defendants, Henry Hall and the sureties, J. P. Layne and P. H. Morell, to recover certain sums- of money which Henry Hall as guardian received and failed to account for. While many other items are referred to and discussed in the briefs, this litigation concerns only two items: the sum of $270, received by Henry Hall as guardian from Morgan Clark, a former guardian, and the value of 245 trees which it is claimed Layne appropriated to his own use with the consent of Henry Ball, and failed to pay for. In the original petition the value of these trees is fixed at $750. By the amended petition their value is fixed at $2,925.25. During the progress of the action P. H. Morell died, and the action was never reviewed. The chancellor held that plaintiff was entitled to recover one-half of the .sum which Eenry Ball received from Morgan Clark, and also one-half of the value of the timber, which he fixed, at $750. Judgment was accordingly entered in favor of plaintiff for $510, with 6 per cent interest from July 23, 1900, until paid. The (defendants, Henry Hall and James P. Layne, appeal, and plaintiff prosecutes a cross appeal.
At the time of the appointment and qualification of Henry Hall as guardian of Jacob and Alice Clark, William Akers wa,s their guardian. During the year 1892 he entered into the following contract with the defendant, J. P. Layne:
“August 30,1892.
“I hereby agree to sell J. P. Layne all down and dead and perishing timber on John Clark’s heirs’ land that his Guardian has control of on the Prog Branch, and Lackey Place for $1.00 per tree or log, and those that will make one log 50 cents, per log. iSaid Layne is to pay said money, or give note and security for said timber before it is ¡moved off the place.
William Akers,
Guardian for Jacob and Alice Clark,
J. P. Layne.”
At the time this contract was entered into, Jacob Clark was 17 years of age and Alice, 15. Henry Hall was their step-father, and together with their mother, had the custody of the children. According to the evidence for plaintiff, Akers, before entering into the above
After Akers was superseded in the guardianship ne, as next friend -to the infants, instituted a suit in their names against Hall and Layne. He set up the- contract between him and Layne and the fact that the trees had been deadened, and that Layne, in claiming the trees under -the contract, had converted them unto his own use. He also charged that Hall and Layne -had fraudulently conspired to procure his removal as guardian, and that
“The writing in question was but an agreement to sell, and passed no title to Layne until the timber was so marked that it could be readily identified. This case illustrates the necessity and importance of the rule stated, for in this case the parties promptly disagreed as to what trees were included in the writing or contract, and besides this the writing, even if it was a contract, ought not to be enforced against the infants. It would be a fraud upon their rights to do so whether appellant intended to sell the 245 trees or not.
“For the errors indicated the judgment of the court below is reversed and cause remanded with directions to set aside the order dismissing the action as to the infants, and to ascertain the value of the timber in controversy, and to allow appellant reasonable compensation for the labor and expense, if any, which he, in apparent good faith, incurred in preparing the timber for market, , and by proper orders and judgment protect and guard the rights of the infants, and for further proceedings consistent with this opinion.” Clark, &c. v. Layne, &c., 97 Ky., 290.
On the return of the case Akers’ claim for compensation for labor performed and services rendered in marking the timber was compromised by the payment of $200, but it appears that this money was paid out of the wards’ estate. No further proceedings were taken by the infants in that action.
For defendants Layne testified that he took the tim» her off the land under the contract in question; that he took no timber that was not belted or deadened. He did not remember the number of trees. On March 31, 1893, he executed a note to Jacob Clark and Alice Clark in the sum of $149.84 for timber bought of William Akers, guardian, and the administrator of John Clark, deceased, This note he paid. He never paid any money to William Akers, but paid it to Henry Hall. The timber which he
Henry Hall testified that he was guardian at the time that Layne moved the timber, and helped him to haul it. Plaintiff, Jacob Clark, also helped. On cross-examination, witness stated that Squire Akers had told him that he could not handle the timber unless it was deadened, and thereupon he told Jake that the only way he could cut the timber was to deaden it. He told Jake that he could get Eobert Gibson to help. Akers knew that the timber was deadened, and never objected to it. Witness himself applied to the county court to have Akers removed. The timber that was taken was pretty good sized timber. When he became guardian he never changed the contract, but permitted Layne to go on and take the timber. Did not know whether or not the particular purpose of having Layne removed was to enable Layne to get the timber. Mr. Layne did not pay the money to him, but he paid-some to Bummer Friend and paid some taxes.
• For defendants it is insisted that Hall is not .liable for the value of the timber taken by Layne because none of the proceeds of the sale came into his hands. As held on the appeal in the case of Clark v. Layne, supra, the title to the trees that were deadened for the purpose of making the contract effective as to them did not pass under the contract which Akers as guardian made with Layne. Akers therefore acted with proper care and prudence in preventing Layne from taking that portion of the timber. At the time Akers was superseded, he was endeavoring to dispose of the deadened timber on the best possible terms. The evidence shows that Hall induced Jacob Clark and others to deaden the timber so that it would be covered by the contract in question Akers’ conduct in the matter shows that he did not consent to this. Not being able to get Akers’ consent, Hall persuaded Jacob Clark to institute proceedings in the county court for the purpose of having Akers removed and Hall appointed in his place. The plan was carried into effect. Thereupon Hall not only let Layne take the timber in question, but actually assisted in hauling the timber. A guardian in the management of his ward’s estate should act in goodfaith and with the same prudence and discretion that an ordinarily prudent man is accustomed to exercise in the management of his own affairs. Harris, &c. v. Berry, 82 Ky., 137. Here Hall was not
Defendants insist that the value of the timber was fixed too high, while plaintiff contends that the judgment on tMs item should have been for a much greater amount. While Akers does fix the value of the timber taken at a sum greatly in excess of that fixed by the chancellor, yet Roibinett testifies that he received $176 for hauling the timber, and that he was paid on the basis of five cents a cube. It is also apparent from the record that he hauled nearly three-fifths of the timber. TMs .being true, the quantity of the timber fixed by Akers could not have been as great as he -says. As plaintiff, when tMs suit was first brought, only asked for $750 for the timber cut and removed, and his evidence supports that valuation, and as the evidence for defendants does not satisfactorily show that its value was any less than that sum, we see no reason to disturb the finding of the chancellor on this question. Nor do we think that defendants should have any credit for the $149 claimed by Layne to have been paid to Hall. In the absence of evidence to the contrary, it is apparent that this was sufficient to cover only the timber taken in addition to the trees that were deadened.
Plaintiff insists that the judgment is erroneous in not awarding him the entire value of the trees, or the isum of $750. In this connection he argues that he and Ms sister inherited from their father the land from which the timber was cut. The trees cut were a part of the realty, and his sister having died in infancy and without issue, the whole of the land descended to him. Kentucky Statutes, Section 1401. And as no title to the timber in question passed by virtue of the contract of sale, it must be treated as realty. The timber, however, was cut in the lifetime of Ms sister. Having been cut by Layne and disposed of, there was left in her only the right to recover one-half the value thereof. This right of action was not real estate, but on her death vested in her ad
Judgment affirmed on original and cross appeals.