Aaron v. Mendel

• Decision Date: 08 April 1880
• Parties: Aaron v. Mendel.
• Court: Kentucky Court of Appeals

78 Ky. 427

Aaron v. Mendel.

Court of Appeals of Kentucky.

April 8, 1880

1. The relation between a creditor and surety is one of trust and confidence, and demands the utmost good faith on the part of the creditor.

2. The appellant having arrived at full age, released her guardian under circumstances that showed fraud upon the part of the latter. But the appellant waited for four years to attack the release for fraud. This laches is fatal to her right of recovery against the appellee as surety.

APPEAL FROM LOUISVILLE CHANCERY COURT.

RUSSELL & HELM FOR APPELLANT.

The release of J. T. Mendel was obtained by fraud, and cannot protect the surety. (Bigelow on Estoppel, 473, 540; Howard v Huston, 2 El. & B., 1; 28 Me. 520, 540; 38 Ill. 152; McAdams v. Hawes, 9 Bush, 23.)

HARLAN & WILLSON AND BOLAND & BURNETT FOR APPELLEE.

1. The release of the appellant's guardian, although it may have been obtained by fraud, released the appellee as his surety.

2. Having failed to attack the release for four years, the appellant is estopped by lapse of time from a recovery against the appellee as surety upon the bond. (Kirby v Taylor, 6 Johnson's Chy. Rep., 248; McClelland v. Kennedy, 8 Met., 252.)

OPINION

COFER JUDGE:

David Mendel died in 1865, leaving a widow and five or six infant children.

His widow, Rachel Mendel, was appointed guardian of the children and continued in that capacity until 1873, when she resigned her trust and was succeeded as to four of the children, who were still minors, by Z. D. Mendel, one of the children who had attained majority.

In the meantime certain real estate which descended from David Mendel to his children had been sold under a judgment rendered in a proceeding under the statute for the sale of the real estate of infants, and the sale money had been paid into the depositary of the court.

Soon after his qualification as guardian Z. D. Mendel applied to be permitted to withdraw that part of the money belonging to Eva, one of his wards.

Before the desired permission was given he was required to execute a covenant for the faithful discharge of all his duties as guardian under the statute under which the land was sold. He gave the required bond, with his mother, Rachel Mendel, and the appellee, Julius Mendel, as his sureties, and thereupon withdrew Eva's share of the proceeds of the sale of the realty.

In October, 1874, Eva married Benjamin Aaron, who was then only about twenty years old, and in September, 1878, she and her husband instituted this suit against her late guardian and his sureties on the covenant above referred to, alleging that no part of the money received by the guardian for her had been paid or accounted for.

Z. D and Rachel Mendel made no defense, and judgment by default was rendered against them.

Julius Mendel answered, among other things, that Eva, after she attained her majority, in consideration of a certain note for two thousand dollars, executed to her by her mother, the said Rachel Mendel, released and acquitted her guardian, Z. D. Mendel, of all claim or demand against him as such.

Other defenses were set up, but it is unnecessary to state them.

On final hearing, the court dismissed the petition as to Julius Mendel, and the plaintiffs have appealed.

Some objections are taken to the manner in which the release is described in the answer, and to the fact that it purports to release Z. D. Mendel from liability as administrator and not as guardian.

The answer describes the release as dated August 3d, 1874, at which time Eva had not attained her majority; but the writing, which is made an exhibit and filed with the answer, bears date September 3, 1874, two days after she attained the age of twenty-one years.

This misdescription was not material. It was alleged that the release was executed after she reached majority, and the paper being filed with the pleading, must control and correct it.

Z. D. Mendel was not administrator of David Mendel. His only indebtedness to Eva on account of the estate of their father grew out of his guardianship for her; and the parties all understood and treated the release as relating to his indebtedness as guardian.

The evidence shows satisfactorily that the release was unfairly procured, and although there is no evidence whatever of any complicity on the part of Julius Mendel with Z. D. and Rachel Mendel in procuring the release, yet if the release had been attacked within a reasonable time after it was obtained, or after the influences which induced its execution were removed, and after the appellants were in a condition to assert their rights, we should not hesitate...