Moody v. Bibb

50 Ala. 245 | Ala. | 1874

PETERS, C. J.

It is not necessary, in the present condition of this suit, to go into any very minute statement of the facts set out in the bill and answers. There is no serious collision in these statements, except upon the allegations charging fraud, which it is not my purpose at present to consider. Taking the undisputed facts set out in the pleadings, did the chancellor err in his decree in the court below, from which this appeal is taken ?

This is a suit in chancery. That jurisdiction seeks to enforce the law, but only in such a manner as shall result in the most strict justice to all the parties on both sides, under the law governing their rights. As no law is intended to ultimate in wrong to the citizen, who is also the sovereign, the chancellor sits in a court of equity to dispense the power of the sovereign, to correct the unintended injurious operation of the law, which the sovereign himself would have prevented had it been foreseen. Adams’s Eq. Intro, p. xxiii.; 2 Bac. Abr. (Bouv.) p. 684 c; 1 Woodd. Lect. VII. pp. 114,115, marg.; 1 Story’s Eq. ch. 2, § 89, et ubique. This great light in this important jurisdiction may sometimes enable us to do right, which is the law of laws, and what the sovereign authority always must intend.

[The Chief Justice here stated the facts as given above.]

1. The appointment of Moody as the guardian of Rufus R. Sims, by the orphans’ court of Tuskaloosa county, in June, 1849, whether for special or general purposes, was clearly void. The court acted without jurisdiction. Sims was not brought before the court in any manner, and had no notice whatever of the proceeding to declare him a lunatic. This was necessary, before he could be put under the restraint of a guardianship, and deprived of the control of his own person and of his property. This appointment was made before the adoption and promulgation of the Code of Alabama.. The proceeding was, therefore, under the law as it existed before the Code was proclaimed. A like case to this came under the judicial notice of this court in 1852, at the June term of that year. This was the case of Eslava v. Lepretre, 21 Ala. 505. In this latter case, the report shows that a guardian had been appointed for Mrs. Eslava, as a person of unsound mind, on the petition of her husband, by the orphans’ court of Mobile county, without first proceeding to have her declared a lunatic. The appointment of the guardian was made before the 7th day of January, 1849, as on that day her guardian was served with subpoena to bring her into court. 21 Ala. 511. In her case, this court said: “ This appointment was made upon no other assurance of the fact of Mrs. Esl'ava’s lunacy than the petition of her husband, without notice to her, and without the issue of a writ de lunático inquirendo, and the verdict of a jury thereon. Without the issue of this writ, and the finding of the jury, the county court judge had no power to declare her a lunatic, or to appoint a guardian for her. These proceedings are indispensable to give the county court jurisdiction to make the appointment; and as they were not had, and the court is one of limited jurisdiction, the proceedings on the appointment of the guardian are coram non judice and void. Such being the case, they may be impeached in any court, in a collateral proceeding, in which a party seeks a benefit under them. Wightman v. Karsner, 20 Ala. 446; 10 Peters, 449; 13 Peters, 511; 6 Wheat. 119; 3 How. 762; 5 Hill N. Y. 568; 11 Wend. 652; 8 S. & M. 521; 16 Verm. 251.” 21 Ala. 504, 522. The appointment, in the case at bar, was precisely similar to that in the case above cited. It was wholly ex parte, and therefore void. McCurry v. Hooper, 12 Ala. 823; 5 Pick. 219; 14 Mass. 222. Sims should have first been declared a lunatic in some regular way, before any guardian could have been appointed. Clay’s Dig. p. 302, §§ 29, 30; 12 Ala. 823; 21 Ala. 504. Moody was not, then, the guardian of Sims, and the decree of the probate court on his final settlement and discharge was void.

2. But, having assumed to discharge the duties and trusts of a guardian, Moody rendered himself liable to account as such, in airy court of the State having jurisdiction to administer such trusts. There can be no doubt that such jurisdiction belongs to a court of chancery. Hall v. Hall, 43 Ala. 488. The court of probate has no jurisdiction in such a case. No principle is better settled, than that a person, by meddling with trust funds without authority, may make himself a trustee in invitum. 2 Story’s Ecp §§ 1254 et seq.; Wormley v. Wormley, 8 Wheat. 421. If this were otherwise, a person would be allowed to set up one illegal act, in defence of another illegal act. This is not to be permitted. One wrong cannot excuse another wrong. Injuria non excusat injuriam. Broom’s Max. (London ed.) pp. 247, 343, 349. It follows from this, that if Moody undertook to act as the guardian of Rufus R. Sims, he was bound to regulate and limit his acts by the law of his assumed office. He could not go beyond this, and he should not be deprived of any benefits that may spring out of it. Cunningham v. Pool, 9 Ala. 615; Wilson v. Knight, 18 Ala. 129. When a person incurs such responsibilities, he may be discharged by complying with the demands of the law, as though his appointment had been regular and legal, in a proper court, or by the act of the ward himself, if he is sui juris. The decree of the learned chancellor in the court below does not go beyond this. It is, therefore, free from error in directing an account to be taken.

3. A few words more will dispose of the question raised on the use made of the “ Confederate currency.” The Code of Alabama was the law that governed the administration of the estates of guardians held as such, and their final settlements and discharge, at the time Moody attempted a settlement as above shown, in June, 1863. It was the law of the rightful and legal government of this State. The enactments of the illegal rebel government could not repeal or alter the Code, which was the law of the legal government. This was one of the points expressly decided in the case of Texas v. White, 7 Wall. 700, 732. The Code does not permit any investment of a ward’s money or property in Confederate securities, or Confederate currency. That issued by the State was illegal. Hanauer v. Woodruff, 15 Wall. 439. And that issued by the “ Confederate government,” so called, was a nullity and worthless. Thorrington v. Smith, 8 Wall. 1, 11, 2d par. from top. It was “ one of the agencies resorted to by the adherents of the Confederate government to carry on the war against the United States.” Sakfold, J., in Ponder v. Scott, 44 Ala. 241, 246.

The Code did not permit the estates of persons under guardianship to be exchanged into such a currency, without the assent of the ward, given when he was capable of such assent. Then the act of the rebel government purporting to have been approved on November 9, 1861, did not repeal the Code, nor confer authority on Moody to convert the moneys or property of Sims into Confederate treasury-notes. Pamph. Acts 1861, pp. 53, 54. This was an attempt to repeal the Code, which cannot be sustained. 7 Wall. 700, 732. Under the Code, the guardian’s powers are carefully defined ; and he cannot go beyond these powers, without a proper order of a proper court. If he does, it is at his own risk, and the loss must fall upon his own head. Rev. Code, § 2426; Hall v. Hall, 43 Ala. 488, and cases there cited.

In a late case in this court, a like question with the present came under discussion. It involved the power of administrators with the will annexed to convert or exchange the bequests of the testator into “ Confederate currency,” or Confederate securities. This court said: “ As the bequests were, or ought to have been, vested on debts well secured, the onus is on the administrators to show that they were properly administered. Unless the necessities of the children required the collection of some of the money in Confederate currency, or the threatened insolvency of some of the debtors, or some other equally urgent cause, made it necessary, the property ought not to have been so exchanged. We cannot give any more definite instructions than these contained in the case of Houston v. De Loach, 48 Ala. 364.” Anderson v. McGowen & Wife, 45 Ala. 462, 470. We feel that the principles thus settled need no modification. They are still adhered to.

After the guardian had committed a waste, or conversion of the ward’s estate, under the law as it then existed in the Code, the general assembly, by a subsequent enactment, could not release the guardian from the liability thus incurred, without the consent of the ward, given in some legal manner. Such an act would be void as to past transactions, in which the right of the ward had become vested. The power of the legislature is to protect vested rights, not to impair or destroy them. The remedies to enforce such liabilities may be controlled by statutes of limitations, passed for the public repose. Interest reipublicœ ut sit finis litigium. Co. Litt. 303. But the right to life, liberty, and property is sacred, and it cannot be invaded by the legislative power. Decl. of Independence ; Cooley’s Const. Limit, p. 351 et seq. ; Sedgwick on Stat. & Const. Law, p. 177 et seq. So far as the act of the general assembly of this State, entitled “ An act for the relief of executors, administrators, guardians, and trustees,” approved February 23, 1866, has the effect to sanction unauthorized conversions of the estates of deceased persons, minors, and beneficiaries, into Confederate currency, whether issued by the State or the Confederate States government, so called, it is void. Pamph. Acts 1865-6, p. 714; Rev. Code, § 2135; Newman v. Reed, at the present term ; Sedgw. on Stat. & Const. Law, p. 177 ; Gunn v. Barry, 15 Wall. 610, 622. See, also, Head v. Talley, opinion by Chase, C. J., U. S. Cir. Court, Richmond, Va. 1870. Then the attempted payment to the administrator, May, in Confederate currency did not discharge Moody. He is still liable to account.

The judgment of the court below is in conformity with the principles of law above announced ; it is, therefore, affirmed at appellant’s costs.