Bradley v. Singleterry

DOWDELL, C. J. The appeal in this case is taken from the decree of the chancellor overruling the respondents’ demurrer to the bill. The bill is exhibited by a non compos mentis, by his next friend. The purpose of the bill is to set aside fraudulent conveyances made by the guardian of the non compos, and to subject the property conveyed to the payment of a decree rendered in the probate court in favor of the non compos, against said guardian, on a final settlement of his said guardianship. The bill was filed 15 years after the date of the alleged fraudulent conveyances. The bill was demurred to on the grounds of laches and the statute of limitations, which demurrer was overruled by the chancellor. The bill avers that the complainant was, prior to and at the time of the alleged fraudulent conveyances, a non compos, and that he has been a non compos continuously down to the filing of the bill. Such being true, which is confessed by the demurrer, the statute of lim [109] itations is no defense. The complainant’s disability excepts him from the statute. — Code 1907, ■ § 4846. The doctrine of laches carries with it the idea of acquiescence on the part of him charged with laches A non compos is without a mind, and where there is no mind there can be no acquiescence. This case is clearly differentiated from the case of Lee v. Wood, 85 Ala. 169, 4 South. 693, on the facts. The facts here necessarily withdraw the case from the application of the’ doctrine stated in Lee v. Wood. Here, on the facts alleged and taken as confessed on demurrer, the guardian of the non compos, who is made a respondent to the bill, by his own fraud and misconduct disqualified himself as guardian to sue or act for his ward, and this condition existed at the time the cause of action arose, and at the time he was appointed guardian on his application. The ward in effect was without a guaridan to protect his interest in the subject-matter of this suit. There being no one qualified to represent the non compos, the principle stated in Lee v. Wood, supra, fails of application. The bill in our opinion was not subject to the grounds of demurrer interposed, and the demurrer was properly overruled. Affirmed. Anderson, Mayfield, and Somerville, JJ., concur.