Opinion
No. 36294.
January 13, 1947. Suggestion of Error Overruled February 24, 1947.
1. INSANE PERSONS.
In suit by former incompetent to review errors apparent on face of record in guardianship matter, complaint that failed to allege that any expenditures made by guardians were not fully authorized by court, or that they were not fully supported by legal vouchers, or that his realty was sold for less than its full and fair value, and which showed that proceeds of sales were expended under court orders mainly for support of former incompetent's minor children, was subject to general demurrer of successor guardian and purchasers of the realty.
2. APPEAL AND ERROR.
Where former incompetent who brought suit to review errors apparent on face of record in guardianship matter, against his wife who had been his guardian, and others, asked that suit be dismissed "with prejudice" as to present owners of realty which had been purchased by the wife after her resignation as guardian from the successor guardian, case was moot on issue whether it was proper for wife to purchase the realty.
3. INSANE PERSONS.
In suit by former incompetent to review alleged errors apparent on face of record in guardianship matter, complaint alleging that former incompetent owned a stock of goods, wares and merchandise, together with store fixtures, which were withheld from inventory by his wife as original guardian, and were converted by her to her own use, was not subject to wife's general demurrer.
APPEAL from the chancery court of Yazoo county. HON. M.B. MONTGOMERY, Chancellor.
Forrest G. Cooper and Howard Q. Davis, both of Indianola, for appellant.
The court erred in sustaining the motions to strike from the original bill of complaint the allegations of fraud.
Code of 1942, Sec. 646; 23 Am. Jur., Fraud and Deceit, Sec. 2.
The court erred in sustaining special and general demurrers to the original bill of complaint.
Hicks v. Blakeman et al., 74 Miss. 459, 21 So. 7; Isom v. First National Bank et al., 52 Miss. 902; Buie et al. v. Pollock, 55 Miss. 309; Gillespie v. Hauenstein et al., 72 Miss. 838, 17 So. 602; Dorsey v. Murphy et al., 188 Miss. 291, 194 So. 603; Hill et al. v. Billingsly, 53 Miss. 111; Rucker v. Dyer, 44 Miss. 591; Longino v. Delta Bank et al., 75 Miss. 407, 23 So. 178; Brandau et ux v. Greer et al., 95 Miss. 100, 48 So. 519; Whitfield v. Miles, 101 Miss. 734, 58 So. 8; Deanes v. Whitfield, 107 Miss. 273, 65 So. 246; Joor v. Williams, 38 Miss. 546; Belt et al. v. Adams, 125 Miss. 387, 87 So. 666; Union Chevrolet Co. v. Arrington et al., 162 Miss. 816, 138 So. 593; Pough v. Jones (Iowa), 112 N.W. 225, 11 L.R.A. (N.S.) 706, 120 Am. St. Rep. 451, 13 Ann. Cas. 499; Cunningham v. Cunningham (Ky.), 68 Am. Dec. 718; Code of 1942, Secs. 439, 598, 1377, 1387, 1925.
The court erred in denying the appellant additional time in which to plead further.
Henry Barbour, of Yazoo City, for appellees.
Mrs. O'Flarity's resignation and purchase of lands from her successor was perfectly proper and every step was under orders of the court, without irregularity or suspicion.
The bill shows that it is not true that Mrs. O'Flarity purchased prior to her final account.
O'Flarity is estopped to ask any relief because with a full knowledge of all the proceedings in the guardianship of Mrs. O'Flarity, Dawson and Love, he waived a final account by Love and receipted him for the balance due him, which funds came from the sale of the real estate, and petitioned for Love's discharge.
Gilleylen v. McKinney, 74 Miss. 764, 21 So. 918; Bright v. Bright, 156 Miss. 766, 126 So. 901.
O'Flarity is estopped because he waived all irregularities in the real estate sales to Mrs. O'Flarity by dismissing his bill with prejudice against Claud Hopkins, Mrs. M.J. Curran and Robert Berkley Simmons, who the original bill shows were purchasers of the lands from Mrs. O'Flarity, grantee of A.R. Dawson, guardian. He cannot hold Mrs. O'Flarity or her bondsmen liable for anything after releasing to third party present owners all claim to real estate which he alleges was improperly sold by Dawson.
Kimbrough v Wright, (Miss.), 22 So.2d 158.
The original bill shows that the estate was properly administered, every cent received by the guardians properly accounted for, every sale by the guardians authorized by valid decrees of the court, and every expenditure supported by legal vouchers.
O'Flarity is barred from filing this action under either Section 752, governing bills of review, or Section 646, governing falsifying accounts of guardians, because he does not allege when he recovered his sanity, and the record shows that he recovered his sanity on or before May 18, 1942, the date he was discharged from the insane hospital, which was more than two years before he filed this suit on March 13, 1945.
The court was correct in sustaining our motion to strike the allegations of fraud from the bill. Fraud cannot be inferred and the fraudulent acts must be clearly set out.
Weir v. Jones, 84 Miss. 602, 606, 36 So. 533; Griffith's Mississippi Chancery Practice, Sec. 176.
See also Majure v. Johnson et al., 192 Miss. 810, 7 So.2d 545; Griffith's Mississippi Chancery Practice, Sec. 635.
The point that the defendant and her surety should show why she did not account for a stock of goods and store fixtures, if any such were received by her as guardian, was waived by appellant, because it was not argued in his briefs.
Bridges v. State, 154 Miss. 489, 122 So. 533; Rayl v. Thurman, 156 Miss. 8, 125 So. 912; E.L. Bruce v. Brogan, 175 Miss. 208, 166 So. 350.
The point was waived by the appellant because it was not included in the assignment of errors.
Eaton v. Hattiesburg Auto Sales Co., 151 Miss. 211, 117 So. 534; Nickey v. State, 167 Miss. 650, 147 So. 324.
The appellant waived said point, not through oversight, but because it was not error for the lower court to sustain the general demurrer, in spite of the allegation, this being strictly a bill of review for error appearing on the face of the record controvertible only by demurrer. The record of the guardian's administration did not show any stock of goods or fixtures.
Majure v. Johnson, supra; Weir v. Jones, supra; Griffith's Mississippi Chancery Practice, Sec. 635.
Assuming for the sake of argument that Mrs. O'Flarity did receive a stock of goods and fail to account for same, O'Flarity by his settlement with his last guardian, F.J. Love, estopped himself to demand any further accounting.
Bright v. Bright, supra; Gilleylen v. McKinney, supra.
H.C. Stringer, of Jackson, for appellee, A.R. Dawson, adopts the brief of Henry Barbour.
Several years ago the appellant was duly adjudicated non-compos mentis by decree of the chancery court after having been committed to the Mississippi State Insane Hospital under a writ de lunatico inquirendo. Shortly thereafter the appellee, Mrs. Jesse E. O'Flarity, wife of the appellant was duly appointed as guardian of his estate, which consisted of certain time certificates of deposits of money and some small tracts of real estate in Yazoo County. After having served as such guardian for approximately two years she had submitted to the court for approval her first and second annual accounts, duly supported by legal vouchers, showing expenditures made under orders of the court previously rendered, whereby the same had been duly authorized.
Upon the filing of the second annual account, this guardian tendered her resignation as such, which was duly accepted, and she thereupon obtained an order from the court whereby it was adjudged and decreed that she and her surety were relieved of all future responsibility and duties in connection with the further administration of the estate, and which order provided that she and her surety be released and discharged of any liability as to her previous actions when such second and final account should be heard and approved, and which was later done.
At the time of the resignation of the said guardian, the appellee A.R. Dawson was appointed guardian as her successor. He thereupon petitioned the court for authority to sell one of the parcels of land belonging to his ward, and later another parcel until each of the three parcels was sold to the wife of his ward, that is to say to the former guardian, who in turn resold the same to Mrs. M.J. Curran, Robert Simmons and Claud Hopkins, respectively.
The appellant brought this suit as a "Bill of Review for errors apparent on the face of the record" in the guardianship matter, which record was made an exhibit thereto, and the pleading also designates the proceeding as being "in the nature of a Bill of Review." He sues his wife and the said A.R. Dawson, together with the sureties on their respective bonds, as well as the persons hereinbefore named who purchased the three parcels of land sold by the said A.R. Dawson, guardian.
There is no charge in the bill of complaint that any of the expenditures made by the guardians were not fully authorized by decrees of the court, or that they were not fully supported by legal vouchers. Nor is there any charge that either of the parcels of land was sold for less than a full and fair value. And it affirmatively appears from the exhibits to the bill of complaint that the proceeds of the sales were expended under orders of the court mainly for the support and maintenance of the complainant's minor children, and it would be presumed, in the absence of proof to the contrary, that the wife would have been at least as much interested as anyone else in causing the land to bring a fair price for that purpose. At any rate, each of the sales was approved and confirmed by the chancellor, after a full hearing on proper notice, in each instance.
Moreover, the record discloses on this appeal that the complainant, subsequent to the sustaining of both general and special demurrers to his bill of complaint, and before the same was finally dismissed on failure to amend, filed a motion asking that the suit be dismissed "with prejudice" as to the present owners of the said land, which was accordingly done, and therefore the case is moot on the issue of whether or not it was proper for his wife to purchase this land at the guardian sales thereof, it not having been charged, as aforesaid, that the land was not sold for a fair price, or that the guardian made any profit on the resale thereof.
The appellant was properly before the court, following an adjudication that he had been restored to sanity, and received from a subsequent guardian and receipted for the proceeds of the sales, less the portion thereof which had been properly and previously expended under orders of the court.
Therefore, the question of whether or not the general demurrer was properly sustained on behalf of Mrs. Jesse O'Flarity and her surety is dependent upon the sufficiency of an allegation in the bill of complaint, to the effect that the complainant "owned a stock of goods, wares and merchandise, together with store fixtures of the value of approximately $500, which was withheld from the inventory, and was converted by the said Mrs. Jesse O'Flarity to her own use," to require an answer to the bill of complaint in that behalf when considered as being "in the nature of a bill of review" to surcharge her accounts as guardian. We are of the opinion that under the general prayer for relief this allegation required an answer; that the court was therefore in error in sustaining the general demurrer on behalf of Mrs. O'Flarity and her surety, but was correct in sustaining the demurrers and dismissing the bill as against the other defendants in all respects, and as against the said defendant and her surety in all other respects than that above mentioned.
The case must therefore be reversed and remanded, to be proceeded with as a bill to require the said defendant and her surety to show cause why she did not account for the said stock of goods, wares and merchandise, and store fixtures, if any such were received by her as guardian.
Affirmed in part, reversed in part, and remanded.
Sydney Smith, C.J., did not participate in this decision.