Mullinax v. Barrett

WILLSON, O. J. (after stating the facts as above). [1] In his first assignment appellant complains because the court overruled his “motion to dismiss the case from the docket.” As stated above, the ground of that motion was that Barrett and the Lees were estopped by the judgment rendered in a suit prosecuted by Barrett, as guardian, against Ed Whittle to have the latter’s final account as guardian restated. That they were not es-topped by that judgment is believed to be clear; but whether they were or not need not be determined. Such a question was not presented by anything appearing on the face of the bill. If appellant thought the facts of the case made such a question, and wished it determined, he should have pleaded and proved those facts as a defense to the suit. [2] It is next insisted that the court erred when he peremptorily instructed the jury to find in favor of Barrett, guardian, and the Lees. The application for an order authorizing a sale of the minors’ interest in the land was made by one Shurtleff, as attorney for the guardian Ed Whittle. It was alleged in the application that it was necessary to sell the minors’ interest, because the personal property belonging to their estates was not sufficient to properly support and maintain them. The application was not sworn to. It was not accompanied “with an exhibit, under oath, showing the condition of the estate,” as the law required it to be. Article 4156, R. S. 1911. The probate court heard no testimony and made no inquiry to ascertain whether a necessity existed, as alleged, for selling the interest of the minors in the land or not. The facts just stated being uncontroverted, we are of opinion it appeared, as a matter of law, that the action of the probate court in granting the order directing the sale was erroneous. Eor that reason it should have been set aside, unless appellant, as the purchaser at the sale made thereunder of the minors’ interest in the land, had acquired rights which should not have been ignored. [3] We are of opinion it conclusively appeared he had not acquired such rights. According to the report made to the court by the guardian, appellant agreed to pay $525 for the minors’ interest in the laud, and to pay one half of the amount in cash and the other half thereof on January 1, 1912. The guardian was forbidden by law (article 4181, R. S. 1911), as appellant must be assumed to have known, to execute and deliver to him a deed conveying the interest of the minors, until after he had complied with the terms of the sale of their interest made to him by the guardian. According to his own testimony as a witness, appellant did not comply with the terms of that sale. He did not at the time it was made, nor afterwards, pay to Ed Whittle, as guardian, any sum in cash, and he did not then nor afterwards make and deliver to said Ed Whittle, as guardian, his (appellant’s) promissory note, secured as required by law, for the sum to be paid January 1, 1912. It is not believed that the fact that it was understood between appellant and Ed Whittle that the sum of money and notes appellant delivered to said Ed Whittle and Jack Whittle as the consideration for the conveyance to him of their interest in the land was to be also the consideration for the conveyance, when same should be made, of the minors’ interest therein, created equities in appellant’s favor as against the right of the minors to the relief granted. That understanding doubtless was binding on Ed Whittle in his capacity as an individual. It did not bind him in his *1184 capacity as guardian, and therefore -did not bind the minors. If the testimony authorized the court to peremptorily instruct the jury to find in favor of the minors’ contention that the order directing the sale of their interest in the land should be set aside, and we think it did, then the court did not err in instructing them generally to find in favor of Barrett, guardian, and the Bees. And he did not err when, on such a finding, he entered judgment vacating the order confirming the sale of that interest, as well as vacating the order directing the sale. If the sale made was unauthorized, then it would follow that the order confirming the sale was unauthorized. [4] It is believed that the contention made that the court below erred in decreeing a cancellation of the deed executed by Ed Whittle as guardian to appellant should be sustained. Even if the court had power in a proceeding of this nature to award such relief, he should not have awarded it in the absence, as was the case, of pleadings asking it. In this respect the judgment will be modified, and, as modified, it will be affirmed. Footnotes [1] <@^>For other eases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes