Opinion
3 Div. 479.
May 19, 1921. Rehearing Denied June 23, 1921.
Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.
W. A. Gunter and David W. W. Fuller, both of Montgomery, for appellant.
The proceeding was in rem. Petitioner was acting as guardian, under all the sanctions of that relation. 105 Ala. 618, 16 So. 920, 53 Am. St. Rep. 146; 101 U.S. 417, 25 L.Ed. 1052; 12 R. C. L. 1137. The fifth paragraph shows an unqualified fraud on the infant. 95 Miss. 100, 48 So. 519, 21 Ann. Cas. 1118; 129 U.S. 80, 9 Sup. Ct. 246, 32 L.Ed. 608; 85 Ala. 527, 5 So. 209, 6 So. 612; 72 Ala. 1; 81 Ala. 530, 1 So. 217, 60 Am. Rep. 175; 29 Ala. 478; 23 Wn. 132, 62 P. 862; 8 B. P. C. 42; 14 Ves. 273; 98 U.S. 61, 25 L.Ed. 93; 91 Cal. 129, 25 P. 970, 27 P. 537, 13 L.R.A. 336, 25 Am. St. Rep. 159. The cestui que trust ought to be restored to his original rights, and the settlement set aside in toto. 54 Ark. 627, 16 S.W. 1052, 13 L.R.A. 490; 95 Miss. 100, 48 So. 519, 21 Ann. Cas. 1120; 8 Wheat. 422, 5 L.Ed. 651; 15 Pet. 93, 10 L.Ed. 672; 129 U.S. 80, 9 Sup. Ct. 246, 32 L.Ed. 608; 3 How. 333, 11 L.Ed. 622; 11 Wall. 232, 20 L.Ed. 50; 56 Ala. 208; 61 Ala. 340; 104 U.S. 540, 26 L.Ed. 834; 71 Ala. 240.
Hill, Hill, Whiting Thomas and L. A. Sanderson, all of Montgomery, for appellees.
The bill is a collateral attack on the judgment of the probate court, which is of equal dignity and as final and as conclusive as the judgment of any other court. 53 Ala. 615; 55 Ala. 590; 106 Ala. 516, 17 So. 666; 85 Ala. 522, 5 So. 209, 6 So. 612. It is as binding on a minor, when properly represented by a guardian ad litem, as upon an adult, and can be impeached in no other way. Authorities supra. The fraud alleged is not sufficient to impeach the decree. 186 Ala. 310, 65 So. 209; 170 Ala. 362, 54 So. 172; 176 Ala. 390, 58 So. 293; 98 U.S. 61, 25 L.Ed. 93. The position taken in the two cases is as inconsistent as it is unsupported. 80 Ala. 186; 105 Ala. 615, 16 So. 920, 53 Am. St. Rep. 146; 191 Ala. 48, 67 So. 1004.
The complainant has failed to impeach by any satisfactory evidence the allegations of the respondent's petition, filed by him as her guardian in 1912, upon which he sought and obtained a sale of her lands for reinvestment, under a decree of the probate court. We are satisfied that at that time $6,000 was a fair value for the 520 acres, and that the property for which it was in effect exchanged, with the bonus of $1,000, which accompanied it, was a fair equivalent in value and desirability. There is no evidence of fraudulent intent on the part of the guardian or of the purchaser, unless it is to be inferred, or unless it results constructively, from the mere fact of the written agreement entered into between them in December, 1911, looking to and providing for an exchange of the respective properties by means of a guardian's sale upon a proceeding to be instituted thereafter by the guardian.
While that agreement was certainly not enforceable, we cannot regard it as per se a fraud upon the probate court, nor as injurious to the rights of the ward. If the allegations of the guardian's petition were true, as the court conclusively found them to be, his previous agreement with Lucas — calculated, as it was, to effect a lawful and beneficial result in behalf of the ward — would not have been a sufficient reason, if then made known to the court, for denying the prayer of the petition. The action of the court would have been in contemplation of the benefits to be secured to the ward, and not with a view to the punishment of an irregularity on the part of the guardian; and, indeed, courts of chancery do not condemn such anticipatory action merely because it is a usurpation of authority, but, on the contrary, they will sanction and confirm it, if, under the circumstances, it was beneficial to the ward's estate. McCreary v. Billing, 176 Ala. 314, 58 So. 311, Ann. Cas. 1915A, 561.
But, if it should be conceded that the agreement in question was constructively fraudulent, as tending to prevent a fair, honest, and remunerative sale of the ward's property to the highest bidder under free competition, we are nevertheless of the opinion that it was not a fraud of the character requisite for the impeachment of the decree of sale which was rendered by the probate court. It was not extrinsic or collateral to the issues presented for decision, nor was it a deception practiced upon the court in the procurement and rendition of the decree. On the contrary, it was of the very substance of the issues propounded by the statute (Code, § 4424) for determination by the court as the basis for a decree of confirmation.
Under the repeated decisions of this court, the conduct complained of does not meet the requirements for collateral impeachment and nullification. Rittenberry v. Wharton, 176 Ala. 390, 58 So. 293; Hogan v. Scott, 186 Ala. 310, 65 So. 209; De Soto, etc., Co. v. Hill, 194 Ala. 537, 69 So. 948; Id., 188 Ala. 667, 65 So. 988; Hardeman v. Donaghey, 170 Ala. 362, 368, 54 So. 172. The allegations of the bill of complaint in this behalf have not been sustained, and relief was properly denied.
Complainant has offered no evidence in support of her bill to correct errors and mistakes in the final accounting of her guardian, Slocumb. Our conclusion that the land sale and reinvestment cannot now be annulled eliminates from consideration all of the items of charge and expense allowed in favor of the guardian as incidents of those transactions, and which therefore cannot be held as improperly allowed.
In the absence of misconduct or fraud on the part of the guardian, he is not chargeable with compound interest on money in his hands. Calhoun v. Calhoun, 41 Ala. 369; Brand v. Abbott, 42 Ala. 499; Stewart v. McMurray, 82 Ala. 269, 3 So. 47. There is nothing in the record upon which to base an exaction of compound interest from the guardian with respect to funds shown to have been in his hands.
It results that the trial court properly denied the relief prayed under the several bills of complaint, and the decree will be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.