48 So. 397 | Ala. | 1908
— The purpose of this litigation is to compel Byrd C. Willis, guardian of complainants, Mrs. Kate Rice (nee Brasfield) and Sallie Brasil eld, to make settlement of his accounts as such guardian. Willis became guardian of complainants, by appointment of the probate court of Greene county, when they were infants of tender years. The guardianship -was subsequently removed to Mobile county, where the guardian had taken up his residence. Said guardianship continued through the period of the wards’ minority.
The bill shows that an annual or partial settlement was made of his accounts by the guardian on the 10th day of April, 1891, on which settlement a decree was rendered against him in favor of each of the wards. Kate attained her majority on August 6, 1898, and the bill avers that on December 17, 1898, the guardian .had her to sign a written instrument acknowledging fuil
This is the third time the cause has appeared in this court on appeal. On the first appeal we held the bill sufficient in its averments in respect to fraud practiced upon or undue advantage taken of complainants by the guardian in procuring them to sign the Avritten instruments referred to, and touching this phase of the case we used the following language: “There is no merit in the assignment that it is not shoAvn how the respondent took advantage of the complainants in the matter of signing the paper acknoAvledging full settlement. His relation Avas one of the greatest confidence and trust, and called for the utmost of good faith.. It Avas his duty to fully inform them of their rights in all respects. It charged that he took advantage of their youth and inexperience and of his influence oyer them in getting them to sign the paper, which, they further charge, Avas untrue in its statements. This was sufficient. They Avere his Avards from tender years, and had lived with him and grown up under his care and control; and it requires no effort to understand how easily they might be influenced by him against their interests.” —Willis v. Rice, 141 Ala. 168, 37 South. 507, 109 Am. St. Rep. 26. But
On the return of the cause to the chancery court the bill was amended to meet the ground of the demurrer just alluded to; and from a decree overruling the demurrer refiled to the bill as amended the respondent again appealed, and assigned the decree as error. The amendments made to the bill proceeded upon two theories, viz., lack of knowledge on the part of Mrs. Rice of the alleged fraud, and absence from the state of the respondent. The cause, on the second appeal, Avas considered with respect to the latter of the above theories only, and we held that the amendment to the bill brought Mrs. Rice’s cause of action Avithin the saving clause of the statute (Code 1896, § 2805). —Willis v. Rice 39 South. 991. That section is in this language: “When any person is absent from the state during a period within which a suit might have been brought against him, the time of such absence must not be computed as a portion of the time necessary to constitute a bar under this chapter.”
While the construction we have placed upon the averments of the bill in respect to their sufficiency to bring the case Avithin the saving influence of the section of the Code cited is sound, yet AAre are inclined to think, with appellant’s counsel, that the statute cannot be applied
While the effect of this section, of course, is to apply the statute of limitations, it also makes operative all exceptions, on such statutes ingrafted, AA'hich might properly be applied in a court of law. We have seen that the exception under consideration, being confined to limitations provided for in chapter 72, cannot be extended to limitations prescribed in another chapter; and this must be true, Avhether the action is pending in the chancery court or in a court of law. Moreover, section 761 is an express provision for limitations of actions in the chancery court, and operates independently of section 674. These considerations Avere not suggested by counsel on the former appeal, nor did they occur to the court.
HoAvever, the foregoing considerations and conclusions are not conclusive of Mrs. Bice’s right to maintain the bill, if the first theory — lack of knowledge of the fraud practiced — is sufficiently pleaded and proved.
In all the realm of administrative law perhaps, no principle is more clearly stated or freer from diverse decisions than the' one which controls in determining the validity of transactions between guardian and ward before a final settlement; and, as approvingly said by one of our great Chief Justices (Brickell), “it is not, perhaps, capable of clearer or more accurate statement than is expressed by Judge Story: ‘Courts of equity Avill not permit transactions between guardians and Avards to stand, even Avhen they have occurred after the minority has ceased, and the relation become thereby actually ended, if the intermediate period be short, unless the circumstances demonstrate, in the highest sense of the terms, the fullest deliberaton on the part of the Avard and the most abundant good faith (uberrima fides) on the part of the guardian. For in all such cases the relation is still considered as having an undue influence upon the mind of the ward, and as virtually subsisting, especially if all the duties attached to the situation have not ceased, as if the accounts between the parties have not been fully settled, or if the estate still remains in some sort under the control of the guardian.” 1
Taking from the wards the receipts in full, and obtaining from them directions in writing to the judge of probate to discharge the guardian as on final settlement, were acts “into which it was the sacred duty of the guradian not to invite the ward, without a just accounting and full settlement, or the disclosure of every fact necessary to inform the ward of all with which she was parting, and then committing it to her uninfluenced will” whether she would give the receipt and direction or not. — Ferguson v. Lowery, 54 Ala. 510, 514, 25 Am. Rep. 718. The guardian in this case carries the burden of proving that he dealt fairly, that he made full communication of every fact within his knowledge calculated to influence the conduct of his wards, and that he obtained nothing from them without their free consent, given after receiving information of all facts bearing on their rights and the extent of them. “This the law exacts, as a necessary protection of a class of persons liable to be made the victims of the artful.” —Jackson v. Harris, 66 Ala. 565, 567; Harraway v. Harraway, 136 Ala. 499, 506, 34 South. 836.
In the light of these principles it is impossible, we think, to read the evidence in this case and reach any reasonable conclusion other than that the circumstances disclosed as attending the procurement of the receipts from the wards, together with tlieir written directions for the entry of the decrees discharging the guardian, stamp as voidable the transaction which culminated in the decrees in question, upon dissent seasonably expressed by the wards. We are also of the opinion that the evidence supports the allegations of the bill to the effect that Mrs. Rice did not discover the facts constituting
On the reference held by the register, the statement of the account between the guardian and his wards showed a large amount as being due from the guardian to each of the wards. The chancellor overruled exceptions filed by the respondent to the report, and confirmed it. The only questions remaining for consideration relate to the exceptions overruled by the chancellor.
• The account as stated by the register begins with the amounts ascertained to be due the wards on the partial settlement had on the 10th of April, 1891. No subsequent settlements were made by the guardian; and for this reason alone the register was warranted in charging him with simple interest on all funds held in his hands after that settlement. —Bryant v. Craig,. 12 Ala. 354; Smith v. Kennard, 38 Ala. 695, 702; Calhoun v. Calhoun, 41 Ala. 369; Childress v. Childress, 49 Ala. 237; Thompson v. Thompson, 92 Ala. 545, 9 South. 465.
The register- reported that the respondent was not guilty of such misconduct as to warrant the charging of compound interest. Nevertheless the respondent insists that compound interest is included in the account as stated by the register. The report states that compound interest was not charged, and we find, upon a careful examination of the statement of the account, that interest has not been compounded — that the register simply followed the statute (section 2629, Code 1896) in computing interest.
In 1888 the respondent purchased a house and lot in the city of Mobile, on Dauphin Way, paid for it with money belonging to his wards, and took the'title in his
One reason why this contention of the respondent should not be állowed to prevail is, that he, in his “general summary” (attached as Exhibit 1 to his answer to the bill, which summary is a statement of his accounts), charged himself with interest on the money for the same period, and he testified that the summary was true and correct. (See answer to question at bottom of page 92 of the record and continued at top of page 93.) This evidence was before the register, and it was within his province to act upon it in making up the account. In addition to what we have said, we think the maxim, “Consensus tollit errorem,” may here be well applied in preclusion of the respondent’s contention. His summary invited or induced the register to make the charge
In respect to the failure of the register to credit respondent with charges for repairs, taxes, and insurance, claimed to have been paid on the wards’ property, it is sufficient to say that we1 are not reasonably satisfied, from the evidence, that the register erred in not giving-such credits, nor that the chancellor erred in overruling the exceptions which raised these questions.
No other question is presented by the exceptions to the register’s report.
No error being found in the record, the decrees of the chancellor are affirmed.
Affirmed.