Allen v. Wade

• Decision Date: 11 June 1948
• Docket Number: 16176.
• Citation: 48 S.E.2d 538,203 Ga. 753
• Parties: ALLEN et al. v. WADE et al.
• Court: Georgia Supreme Court

48 S.E.2d 538

203 Ga. 753

ALLEN et al. v. WADE et al.

No. 16176.

Supreme Court of Georgia

June 11, 1948

Harry M. Wilson, Herbert W. Wilson and Leon A. Wilson, II, all of Waycross for plaintiffs in error.

T J. Townsend, of Alma, and S. F. Memory and S. F. Memory, Jr. both of Blackshear, for defendants in error.

Syllabus Opinion by the Court.

BELL Justice.

1. The law will not permit a guardian to act in such way that his own personal interest may come in conflict with the interest of his ward with respect to the estate of the latter in his charge. Code, §§ 38-117, 49-205; Clark v. Clark, 167 Ga. 1(1a), 144 S.E. 787; Wright v. Thompson, 190 Ga 173(2), 8 S.E.2d 640; Parnelle v. Cavanaugh, 191 Ga 464, 465(2), 12 S.E.2d 877; Gammage v. Perry, 29 Ga.App. 427(2), 116 S.E. 126. Accordingly, if, after appointment of one as guardian of another's property, he buys a tax claim against his ward's estate, as by obtaining a deed to himself from a county conveying land which the county had previously purchased as the property of the ward at a tax sale, he will be treated in equity as holding under such deed as trustee for his ward. Code, § 108-107; Bourquin v. Bourquin, 120 Ga. 115, 47 S.E. 639. Compare Veal v. Veal, 192 Ga. 503, 505, 15 S.E.2d 725.

2. Nor can such a guardian, either directly or indirectly, buy property of his ward at a sale thereof by some other person or authority, as in this case a creditor of the ward selling at public auction under a power of sale. If he does by such means acquire the legal title to property of his ward, he will in like manner be deemed a trustee as to such property at the election of the ward or his heirs at law. Houston v. Bryan, 78 Ga. 181(3), 1 S.E. 252, 6 Am.St.Rep. 252; Wallace v. Jones, 93 Ga. 419(5), 21 S.E. 89; Fleming v. Foran, 12 Ga. 594; Word v. Davis, 107 Ga. 780, 33 S.E. 691; 21 Am.Jur. 735, § 630. Whether or not there would be an exception to this rule if the guardian had an interest along with the ward in the property that was to be sold, is a question that is not involved in the instant case; but see Parnelle v. Cavanaugh, 191 Ga. 464, 12 S.E.2d 877, supra.

(a) Where such a sale under power is made by a creditor, and a person other than the guardian submits the highest bid, but before a deed is made to such highest bidder, he and the guardian enter an agreement whereby the guardian will take over his bid, and in pursuance of such agreement, the legal title to the land is acquired by the guardian, the sale would be voidable at the instance of the ward or his heirs at law, although there was no agreement as to such purchase by the guardian prior to the sale. Ridgeway v. Ridgeway, 84 Ga. 25, 10 S.E. 495; Livingston v. Peacock, 155 Ga. 261(1), 116 S.E. 618.

3. Where at such a sale by a creditor, the guardian announced before the bidding began that he held a tax deed to a substantial part of the land, stating the amount, and after the sale the creditor, on receiving from the guardian as an individual the amount of the highest bid, made a deed to the bidder, who in turn executed a quitclaim deed conveying the land to such guardian in his individual capacity; and where, after death of the (insane) ward, a suit was brought by his heirs at law against the guardian and others, alleging substantially the foregoing facts, and seeking to have the sale declared void on the grounds, (1) that the guardian had chilled the bidding by the announcement as stated above, and (2) had later by indirection become the purchaser of the property, and praying also for a decree of title in such heirs at law, subject to the amount of the secured debt--held, that, unless a different ruling should be required because of failure of the plaintiffs to show a tender, they would on proof of the facts alleged be entitled to a verdict finding in their favor upon each of the grounds stated, and further, that, on the trial here under review, the evidence introduced was sufficient to carry the case to the jury. As to chilling the sale, see Code, § 37-607; Carr v. Graham, 128 Ga. 622, 57 S.E. 875; Bracewell v. Coleman, 191 Ga. 35, 11 S.E.2d 198; Holbrook v. Dickson, 195 Ga. 821(3), 25 S.E.2d 671; Sims v. Etheridge, 169 Ga. 400(4), 150 S.E. 647.

4. The plaintiffs having alleged that the guardian had been in possession of the property for several years, collecting rents and profits, and had sold valuable timber from the land, in amounts stated, and a general demurrer, filed by the defendant guardian and others, having been overruled, and no exceptions to such ruling having been...