39 Mich. 628 | Mich. | 1878
Wood filed his bill to foreclose a mortgage made by Lucinda C. Truax as guardian of the other defendants, setting forth also a bond made for the same purpose. Having exhausted the land, he procured a decree for the deficiency against all of the defendants personally. Defendant Irene Hibbard appeals from this personal decree.
There is nothing in the bill to maintain such a decree. There is neither statute nor common law which can sustain the personal liability of an infant on a bond made by her guardian. The illegality of the mortgage in this case having been declared as to her original interest the defendant has not appealed from the decree of foreclosure which reserved the other' equities. But inas
Without, therefore, attempting to discuss the questions of fact concerning the mutual equities of defendants, we think the personal decree unwarranted.
The decree must be reversed, as to Mrs. Hibbard, with costs of both courts.
Motion for rehearing. Submitted November 19. Decided November 21.
This court having at the last adjourned day announced an opinion and directed the entry of an order reversing the decree rendered against Irene T. Hibbard, a motion is now made for a rehearing on the ground of misapprehension of facts. • •
The appeal being from a personal decree in which it was sought to charge Mrs. Hibbard for money alleged to have been advanced on her account and from which she is claimed to have received a personal advan
We did not consider it worth while to discuss at length the reasons for arriving at our conclusions,- for we regarded the rules as elementary, and no authority was cited which in our opinion gave color to any other holding on such a case as was before us. We do not propose now in making a final disposition of the case to do any more than point out why the supposed difficulties which counsel have inferred from what they assume to have been misconstrued in the record, do not exist.
The original bill was an ordinary foreclosure bill which in its framework treated all these defendants as sui juris at the time of filing, and prayed relief against all alike personally. By an irregular practice the guardian ad litem joined with the other defendants in an answer and made some admissions, not now complained of, but which as a guardian he had no lawful authority to do, but denying the legal existence of the mortgage as against the minor.
In November, 1876, a document called a supplemental bill was filed devoted entirely to the averment of certain transactions in partition by reason of which it was claimed Mrs. Hibbard had bound herself equitably to pay the debt due to complainant and also averring some recognitions by her.
It not only did not appear (as it was not true in
On the 31st of December, 1877, a stipulation was filed which, so far ás the record shows, was unauthorized by Mrs. Hibbard, who had just come of age, which permitted facts occurring since the filing of the original ■and so-called supplemental bills, to be introduced in evidence as if a new supplemental bill had been filed. '•This stipulation is also inoperative, — not only as apparently attempting to bind without authority an infant just come to maturity concerning transactions during minority, whereon neither guardians nor attorneys can •have any implied power, — but also because it does not even indicate what kind of facts are to be given in evidence as grounds of recovery. As already mentioned, the so-called supplemental bill set up no facts as having occurred during the suit, and even if a stipulation might authorize pleadings to be changed nunc pro tunc, yet in this case we are not informed what facts it was intended to set up. It is fatally ambiguous, and could not justify any decree based upon it.
But the facts actually given in evidence and claimed to have been under stipulation are not in our opinion sufficient to authorize any relief on any allegations and therefore would give no reason for allowing amendments or other changes, however seasonably applied for.
Upon the most favorable view which we are able to take of them, no more is proved than this:
The original loan was made to two persons of full
As a matter of fact the testimony shows' that $8000 of this money went to Charles Truax, and the balance went to Mrs. Truax — not for the ward, but for the general purposes of the estate of her deceased husband and for family expenses. The amount, therefore, which could in any way be said to have gone for the benefit of Mrs. Hibbard was very small and cannot be identified, and none of it was so applied directly as to be properly called a direct payment to or for the minor.
We find no evidence whatever of any action by Mrs. Hibbard since she reached majority to assume or recognize any portion of this as a personal claim.
There is evidence that in making partition of her father’s estate, Mrs. Hibbard received two thousand dollars more than her brother, and that this difference was made up by his having had money enough previously to balance it. This was done by proceedings in partition w'hile she was a minor, and was the result of a general accounting into which this money probably
The equity, plainly stated, is simply this — that because Mrs. Hibbard is said to have received more out of her father’s estate than her brother did, she is personally liable to her brother’s and her mother’s creditor for money lent to them, which in their subsequent dealings they settled as if it had come from the father’s estate. Even this could not be made certain without a settlement of Mrs. Truax’s accounts, which by general consent have been left at large.
We do not know any principle whereby a third person can claim to intervene to set up an interest in such settlements. Even if Mrs. Hibbard had promised to pay her brother’s or her mother’s debts (which is not in our opinion made out in any form legal or not legal), complainant was in no way shown or alleged to have been made a party to such an understanding.
This proceeding is nothing more or less than an attempt to enforce a personal liability without any contract to base it on. Equity cannot create contracts any more than other courts.
Our impression was that inasmuch as Mrs. Hibbard did not appeal from the first decree which provided for the sale of her land, although not the undivided interest which she originally owned, she was not entitled to costs prior to the sale. But inasmuch as that decree expressly reserved the equity concerning her personal liability for future disposal, that reservation left the last decree as
The motion for .rehearing is denied, arid the decree, which has not yet been completed in this court, will be entered accordingly.