Opinion
No. 31779.
January 27, 1936.
1. GUARDIAN AND WARD.
Evidence held to sustain finding that property purchased by guardian for ward was worth purchase price and that sale was made in good faith; hence guardian was not liable to his successor for amount so expended (Code 1930, section 1882).
2. GUARDIAN AND WARD.
Statements made to chancellor by solicitor of guardian on his personal knowledge, regarding value of property which guardian desired to purchase for ward, held to authorize order authorizing purchase, notwithstanding statements were not made under oath (Code 1930, section 1882).
APPEAL from the chancery court of Benton county; HON. N.R. SLEDGE, Chancellor.
Dean Belk, of Holly Springs, and R.R. Dinsmore and D.G. Fountain, both of Jackson, for appellant.
It is the law in this state that a person bound to act for another cannot act for himself, and that he must make no profit out of the estate of his ward, save the commissions legally allowed him by the court.
Griffith's Chancery Practice, page 48, par. 47; Brandon v. Greer, 95 Miss. 100.
Fraud vitiates everything. Fraud vitiates everything it enters into.
Hudson v. Mill, 147 Miss. 783.
To constitute fraud, it is unnecessary that statement be made with the intent to deceive, if it is a statement of fact, or statement purporting to be a fact, but not true.
McNear Dodd v. Norfleet, 113 Miss. 611.
Fraud consists of anything that is calculated to deceive, whether it is a single act or a combination of circumstances, or acts or words which amount to the suppression of the truth, or merely silence, or other artifices by which a person is deceived.
Salter v. Aviation Salvage Co., 129 Miss. 217; Smith v. State, 107 Miss. 486.
Want of knowledge or facts relative to the value of a piece of property is nothing, it is the guardian's duty to know.
2 Kents Commentaries, 227-30 (12 Ed.).
Fraud is never presumed but may be inferred from facts and circumstances and wide latitude is given in the manner of the proof.
Shepherd v. Cherry, 157 So. 661; People Building Loan Assn. v. Severns, 53 P.2d 944; Carlyle et al. v. Love, Supt. of Banks, 155 So. 197.
Should the proof offered the court prove to be false, it is a fraud upon the court and a breach of trust by the guardian.
The court cannot render a default judgment against a minor but must make every valuable election and rescue them from faithless guardians in such instances. Being unadvised as to the true status and pertinent facts suppressed or withheld or the omission of duty by the attorney and the absence of witnesses, it would, of necessity, make any decree rendered under such circumstances void ab initio.
Hudson v. Mills, 147 Miss. 783; Griffith's Chancery Practice, sections 45, 360, 530 and 533; Union Chevrolet Co. v. Arrington, 162 Miss. 826, 827 and 828; Kennum v. Southern Ry. Co., 151 Miss. 784, 119 So. 134.
Compromise by guardians must have judicial sanction.
Simmons v. Simmons, 85 W. Va. 25; 1 Elliott on Contracts, sec. 306, page 516; Mo. Pac. Ry. Co. v. Lasca, 21 L.R.A. (N.S.) 338; Section 146, Jurisdiction of Supreme Court.
It is the duty of guardian in succession to view with care his predecessor's accounts of the affairs of his ward; and when faithlessness and fraud appear, it is the duty of the guardian to present the matter to the chancellor for correction. If he failed to do this and loss further obtained, he is liable on his bond, being held guilty of laches.
28 C.J., sec. 148, and sec. 478, page 1282; Burke v. Turner, 85 N.C. 500; Shirk's Est., L. Lanc Bar (Pa.) 18, 1869; Shirk's Est., 20 Pa. Dist. 63; Crumpler v. Deens, 85 Ala. 149, 4 So. 826; Hemphill v. Lewis, 7 Bush. 214; State v. Bolte, 78 Mo. 272; Title Guaranty, etc., Co. v. Cowen, 177 P. 563; In re Schenkel, 250 Pa. 504, 95 A. 703; McWilliams v. Norfleet, 67 Miss. 186; Crump v. Gerock, 40 Miss. 765; Banks v. Macken, 40 Miss. 256; Moffett v. Lubridge, 51 Miss. 211; Perry on Trusts, secs. 266, 438-441; State v. Greensdale, 106 Ind. 364, 6 N.E. 926, 66 Am. Rep. 753; Bescher v. State, 63 Ind. 364; Kunz v. Ragsdale, 200 S.W. 269.
The court can, by its order, require the money to be paid back and deed executed by guardian returning property to sellers.
31 C.J., Infants, page 1024, sec. 69, par. 5; McCarty v. Woodstock Iron Co., 92 Ala. 463, 8 So. 417, 12 L.R.A. 136; Baker v. Kennett, 54 Mo. 82; Robinson v. Moffett, 35 Ont. L. 9, 9 Ont. W.N., 209, Dom. Lr. 462; Short v. Field, 32 Ont. L. 395; Radley v. Kenedy, 14 N.Y.S. 286; Beickler v. Guenther, 121 Iowa, 419, 96 N.W. 895; Phillips v. Greater Ottawa Dev. Co., 38 Ont. L. 315, 11 Ont. W.N. 275, 33 Dom. Lr. 259; Jennings v. Hare, 47 S.C. 279, 26 S.E. 198.
Smith Smith, of Holly Springs, for appellee.
As we see it, appellant in this case had three burdens of proof to overcome, and overcame none of them.
Porter v. Still, 63 Miss. 357.
Another burden of proof was that the exception filed was to an account by the guardian which had already been approved by the chancellor.
Heard v. Daniel, 26 Miss. 451; Brown v. Barlow, 51 Miss. 12.
The third burden of proof was upon appellant to prove fraud, because he alleged it.
Parkhurst v. McGraw, 24 Miss. 134; Carter v. Eastman Gardner Co., 95 Miss. 651, 48 So. 615; Dunlap v. Fox, 2 So. 169.
The chancellor heard the conflicting testimony, observed the demeanor of the witnesses on the stand and decided on the facts against the appellant and this finding by the chancellor will not be disturbed unless manifestly wrong.
Interstate Cotton Co. v. Lapsley, 24 So. 532; Howell v. Shannon, 31 So. 965, 80 Miss. 598.
The testimony of most of the witnesses for the exceptor as to the value of the land was incompetent, because they stated that the valuation put upon the land by them was what they would have been willing to pay for it, and not the market value, and in fact did not know the market value.
13 Encyc. Evidence, sec. C, page 557; Board, etc., v. Dillard, 76 Miss. 641, 25 So. 292.
Section 1882, Code of 1930, provides that the court may, on the application of a guardian, authorize him to purchase real estate for his ward with any surplus funds belonging to the ward; and the guardian shall be required to take sufficient title in the name of the ward, to be approved by the court; and the deed shall be recorded in the proper county.
Gully v. Dunlap, 24 Miss. 410.
So long as a person acting in a fiduciary capacity keeps himself within the line of duty, is actuated by good motives, and uses ordinary care and diligence, he is not personally chargeable with the loss or depreciation of funds entrusted to him.
Coffin v. Bramlett, 42 Miss. 194; Williams v. Campbell, 46 Miss. 57.
It is not always unlawful for a guardian to deal with himself on behalf of his ward, having previous authority from the court.
Pan-Am. Life Ins. Co. v. Crymes, 153 So. 803.
The guardian in this case was not dealing with himself, when he joined in the execution of the deed for the bank with the president thereof.
Mexican Gulf Land Co. v. Globe Trust Co., 88 So. 512; Mitchell, Admr., v. Tishomingo Savings Institute, 56 Miss. 444; Wiggins Turpentine Co. v. Calamity Oil Co., 109 Miss. 628, 68 So. 918.
We submit that there is no evidence in the record of evidence proving the bad faith or fraud of appellee, Baker, while on the contrary the only evidence in the record on this point sustains the good faith and absence of fraud on the part of appellee, Baker. The chancellor so found, and rightly so.
We think the purchase under the first order of the court was a valid sale.
Heards Guardianship, 163 So. 685.
The judgment or decree of a court of competent jurisdiction upon the merits concludes the parties and privies to the litigation and constitutes a bar to a new action either before the same or any other tribunal.
34 C.J., sec. 1154, page 743; Neno v. Crosby, 163 So. 678.
A decision which adjudicates every matter necessary to the determination of the cause, and which, when executed according to its terms, will give all the relief which could be afforded, is final.
Humphreys v. Stafford, 71 Miss. 135, 13 So. 865.
Another rehearing of the same issue would not present any different statement of facts, and parties would not be permitted to relitigate a matter already adjudicated by merely presenting new argument on a statement of facts not materially different, in support of a claimed right formerly decided against him.
Moody v. Harper, 38 Miss. 599; Burkett v. Burkett, 81 Miss. 593, 33 So. 417.
On March 4, 1930, appellee, at that time the guardian of the ward concerned herein, filed a petition in the chancery court under section 1882, Code 1930, which in the same language appeared in previous Codes, praying the court that the guardian be authorized for and in the name of the ward to purchase one acre of land therein described with the residence and improvements thereon as a home for the ward and her mother. The petition averred, and the facts were, that the ward was then a female child of about eleven years of age, having no living father and no brothers or sisters, and that she resided with her mother in a rented house, having no other home or residence. It was shown that there were sufficient surplus funds on hand to make the purchase at one thousand eighty dollars, and that the property proposed was well worth that sum. The petition was sworn to by the guardian, and the mother joined in the petition and prayer under oath. Without the pursuit of further details, it may be said that in all formal respects the petition, the decree thereon, and all subsequent proceedings were in substantial compliance with all the requirements of the statutes.
Appellee was subsequently removed as guardian, and appellant was appointed guardian in succession. In due and proper time and in a proper manner the successor guardian took steps in the chancery court to vacate the transaction and proceedings mentioned in the foregoing paragraph and to recover for the ward the said sum of one thousand eighty dollars. The successor guardian averred that the property, at the time of the petition and decree first above mentioned, was worth far less than the sum paid for it, and that this fact was well known at the time to said first guardian; that said first guardian was personally interested in a pecuniary way in the property and in the sale thereof, and that the mother was personally interested because of the facts already mentioned; that the property had never been used as a home for the ward, and, in fact, was in such physical condition as to be unusable.
Upon the hearing, a number of witnesses were introduced. About half of them testified that the property at the time it was ordered purchased for the ward was well worth the sum for which it was sold to her, and some of these testified to facts which, if believed by the chancellor, would establish the good faith of the entire transaction. Others testified that the value of the property at the time sold to the ward was not in excess of five hundred dollars, and some of them placed it as low as three hundred fifty dollars. The chancellor found in his decree that no fraud was practiced in the sale and in the proceedings therein about, and that the property was worth at the time what it was then represented to be worth, and the exceptions by the successor guardian were disallowed and dismissed.
Upon the disputed issues of fact shown by the record, there being enough in the evidence to sustain the findings of fact by the chancellor, we would affirm without comment, except for the feature now to be discussed. That feature is this: When the petition for the purchase of the property was presented to the chancellor, which was in vacation, and his order allowing same was made, there were no witnesses produced before the chancellor and examined under oath. But there is sufficient in the record to disclose that the chancellor did particularly interrogate the solicitor, who presented the petition, concerning the pertinent and material facts, and that the solicitor knew the facts of his personal knowledge and represented to the chancellor that he personally knew the facts and that the property was worth the price asked and that the other material facts stated in the petition were true. The question is then whether the unsworn statements of fact made to the chancellor by the solicitor of a guardian or executor or administrator and upon the personal knowledge of the solicitor is sufficient to sustain an order, such as was made in this case, without the sworn testimony of disinterested witnesses.
Except for the long course of practice later to be mentioned, we would probably answer that question in the negative. In Union Chevrolet Co. v. Arrington, 162 Miss. 816, 138 So. 593, we laid down the general principle that, upon any petition before the chancellor, wherein the substantial pecuniary interest of a minor is to be affected, the hearing must be a real and not a perfunctory or merely formal hearing, that the chancellor is not authorized to conduct a hearing and enter a decree wherein no witness in behalf of the ward is heard, or where the only witness is one who in the very nature of things is adverse to the minor. We reaffirm that principle and the reasons therefor stated in the opinion in the Arrington case. In that case it did not appear whether the solicitor made any statement of facts to the chancellor, and we must assume that he did not, for the record in that case discloses that the solicitor had no personal knowledge of the controlling facts.
Most of our chancery districts are large in territorial extent. Solicitors presenting petitions in probate matters to the chancellor in vacation often travel long distances in so doing, and that was the case here. So far back as any of us can remember, it has been the custom and practice of the chancellors of the state, in probate petitions involving no considerable amounts, to interrogate the solicitor or solicitors, who present these petitions in vacation, touching the matters of fact involved, and to act upon the statements of fact made by the solicitor in response to such interrogation, if and when the solicitor responds upon his personal knowledge and the chancellor knows the particular solicitor to be honest and truthful.
The electorate of this state have exhibited the wisdom to retain in office the chancellors who have proved to be competent and faithful, and these chancellors learn by observation of, and experience with, the members of the bar who among those members are trustworthy and dependable; and, when a probate petition is presented by a member of the latter class, and the chancellor ascertains from him that he personally knows the facts, and not merely by hearsay, and upon interrogatories to the solicitor the chancellor is furnished the full facts upon which he can prudently act, we do not think that we would be justified in declaring upon appeal, and in the face of the stated long practice in such matters, that there is no sufficient evidentiary basis upon which the decree or order can stand, although the solicitor in making his statements was not then and there sworn; for his oath as an attorney binds him to use no falsehood in the performance of his work as a minister of the law.
But, when the amount or interest involved is large, or the surrounding facts are such that a sound judicial caution should suggest the necessity of disinterested witnesses or where the interrogatories to the solicitor are merely perfunctory or where the solicitor has no personal knowledge or, if having it, he misrepresents the material facts to the chancellor, then we would have, in either of these situations, a different case from that here before us, and with such a case we would the better deal when it arises and is presented to us for decision.
Affirmed.