Godwin v. Whitehead

McOLELLAN, J. The appellee, as attorney for the guardian of appellant, who was at that time a lunatic, sued out an execution on a judgment previously rendered in the Probate Court in favor of the guardian ad litem of the lunatic, and had it levied on certain lands. These lands were regularly sold under said levy, and appellee became the purchaser, taking title in his own name, paid the price bid by receipting the execution, and paid the costs of the levy, sale, &c., with his own funds. He subsequently allowed the lands to be sold for taxes, again became the purchaser, paid his bid and the costs with his own money, and took a tax-certificate to himself. The present bill is filed by E. M. Godwin, who was adjudged sane and discharged from guardianship in 1887, against J. M. Whitehead, on the theory that, the latter is a trustee of whatever title passed at the execution and tax-sales for the complainant, and seeks to have such title divested out of the respondent and vested in Godwin. The bill alleges that complainant has all along had possession of the lands. Of the several demurrers interposed, only one, that numbered six, was sustained; and the present appeal is taken from the interlocutory decree sustaining that assignment of demurrer. The ground of that assignment is, that “there is no offer in the bill to pay back the money paid out by respondent for taxes and costs, with interest.” It is involved in doubt whether the objection taken by this demurrer is addressed to the failure of the bill to offer to pay the costs of the execution, or the costs of the tax-sale, or both, as well as the taxes. It w'as on the complainant, of course, to offer to do equity. Equity required of him to refund the costs of execution, since these he would have had to pay had there been no malversation on the part of his attorney, or, what is the same thing, his guardian’s attorney. Likewise, in any event he would have had to pay the taxes, and his bill should have offered to refund the money paid in that behalf by Whitehead. But, had the latter been diligent in the discharge of his duties as trustee, a capacity which the law, on the facts averred in the bill, impresses upon him, he would have paid the taxes before any costs had accrued in their enforcement, and this item.of expenditure would not have been incurred but for the negligence of the trustee. Nor, having voluntarily, and in his own wrong taken upon himself the character and duties of a trustee, can he now be heard to say that he had no funds of the cestui que trust out of which to pay taxes; non constat but for his wrong Godwin, or his guardian, would have paid [411] tbe taxes, ancl avoided the additional outlay consequent upon a sale of tbe land; and bence tbis item of expense may well be said to bave resulted from Whitehead's misconduct as tbe attorney of Godwin’s guardian. Certain it is, it was not necessary to incur it in tbe acquisition and preservation of tbe title in tbe complainant, and tbe fact that it was incurred by respondent must therefore be chargeable to no necessity under which complainant labored, but to tbe wrongful interposition and subsequent negligence of tbe respondent. He is not entitled to be refunded ihe cost of tbe tax proceeding and sale, and tbe bill was not bad for omitting an offer to refund them. — Johnston v. Smith’s Adm'r, 70 Ala. 108; Cunningham v. Jones, 37 Kan. 477; Pearce v. Gamble, 72 Ala. 341. Construing tbe assignment most strongly against tbe de-murrant — and a like result would probably be reached even without tbe invocation of tbis rule — tbe conclusion must be, that tbe objection it presents to tbe bill is, in part, with reference to its failure to offer to refund taxes paid by tbe respondent, and in so far tbe demurrer is well taken; and in tbe other part with reference to tbe absence of an offer to refund tbe costs of tbe tax-sale, and in tbis respect tbe demurrer is not well laid; or, in other words, that tbe demurrer is not good to tbe full extent which it covers, but to a part only; and should therefore bave been overruled in toto. Otherwise, tbe effect would be to require tbe complainant to incorporate an offer to pay both taxes and costs, when, as we bave seen, no such offer is necessary in respect of the costs of tbe proceedings. — Story’s Eq. PL, § 443. Something is said in tbe chancellor’s opinion with reference to a necessity resting on complainant to offer to pay tbe respondent for bis services as an attorney in suing out tbe execution, and in tbe susequent proceedings under it. That question is not involved on tbis appeal, and we only mention it here for the purpose of saying that nothing in tbe foregoing opinion is to be taken as indicating our concurrence with tbe remarks of tbe lower court on that subject. Tbe decree sustaining tbe 6th assignment of demurrer is reversed; and a decree will be here rendered overruling that assignment. Beversed and rendered.