51 Ind. 259 | Ind. | 1875
Lead Opinion
Margaret Hamilton was the guardian of John W. Hamilton. By order of court, she sold, as such guardian, certain lands belonging to her ward, to Archibald Buchanan, and took his promissory note for the purchase-money. Afterwards, she purchased of .John J. Phillips a farm lying in Bartholomew county, in this State; Phillips purchased certain lands lying in the State of Kansas of
John AY. Hamilton brought this suit against Margaret Hamilton and Tyner, to recover the value of the note surrendered to Buchanan by Margaret Hamilton, and included in the note made by Buchanan to Tyner, which note, thus surrendered, as he alleges, was his property, and was thus converted by Margaret Hamilton and Tyner to their own use.
Alargaret Hamilton defaulted. Tyner answered. Issues pf fact were formed, jury waived, trial by the court, finding for the plaintiff, motion for a new trial overruled, judgment, and appeal by Tyner. Margaret Hamilton declined to join in the appeal.
The evidence is before us, amongst which is found the following release, executed by John AY. Hamilton after his majority:
“ AYhereas my late guardian, Margaret K. Hamilton, during the existence of said guardianship and my minority, invested the sum of about one thousand dollars of my estate in her hands as my guardian, the same being evidenced by a promissory note given by Archibald Buchanan to my said guardian, in the purchase of certain real estate in Bartholomew county, in the State of Indiana, to wit(describing the land); “ and whereas disputes and controversies have arisen with respect to the right of my said guardian to make such*261 investment, the propriety and judiciousness of such investment, and.as to whether or not such investment has been ratified and confirmed by me since my arrival at majority, which said disputes and controversies were likely to result in litigation upon the bond of my said guardian against the sureties thereon; now, therefore, in consideration of the full settlement and compromise of all such disputes and controversies, in so far as they related to my right of action in my favor oh said bond, against William Parkison and William Pace, or either of them, as sureties on said bond, or otherwise, and the payment to me by them of the sum of five dollars, I do hereby ratify and confirm the said act of my said guardian in so investing said money, and release •any and all right of action I may have against said Parkison or Pace, or either of them, on account of said act of my said guardian, as sureties on my said guardian’s bond, or otherwise. But nothing herein contained is to be construed as a release of John J. Phillips on said bond.”
Whatever might have been the liability of Tyner under the facts proved, this release, although not given to him directly, is a bar to the action. The ratification of the transaction of his guardian by John W. Hamilton, after his majority, with a full knowledge of the facts recited in the release, makes her acts in the premises as effectually his own as if he had been of age at the time, and had done them himself. Fetrow v. Wiseman, 40 Ind. 148.
The judgment as to Tyner is reversed, and the cause remanded, with instructions to grant the motion for a new trial, and for further proceedings according'to this opinion.
Rehearing
On petition por a rehearing.
The counsel for appellees think the deed of ratification made by John W. Hamilton, confirming the acts of his guardian, • does not protect Tyner, because not made directly to him. We are of a different opinion. It not only protects Tyner and all persons holding under the
The petition is overruled..
