Ames v. Williams

• Decision Date: 23 November 1896
• Citation: 20 So. 877,74 Miss. 404
• Court: Mississippi Supreme Court
• Parties: J. F. AMES ET AL. v. B. G. WILLIAMS ET AL

20 So. 877

74 Miss. 404

J. F. AMES ET AL. v. B. G. WILLIAMS ET AL

Supreme Court of Mississippi

November 23, 1896

October 1896

FROM the chancery court of Noxubee county HON. T. B. GRAHAM Chancellor.

Robert C. Patty, deceased, was guardian of the appellees, and as such came into possession, among other assets, of a note for $ 2, 200, executed by himself, payable to the ancestor of his wards, and which was secured by deed in trust on lands. Patty never accounted for any part of this note. After Patty's death his administratrix, in 1891, filed a final account of his guardianship, and delivered the $ 2, 200 note, and the deed of trust securing it, to the succeeding guardian of the appellees. In 1892 the appellees instituted a suit to enforce the lien of the deed in trust securing said note, and for a personal decree against Patty's administratrix for any balance that might remain after sale of the property. This suit proceeded to a final decree, which adjudged the sum due on the note, with simple interest to date of decree, April 1893, at $ 2, 941.44. During the pendency of said suit the appellees filed exceptions to the final account of Patty's guardianship, presented by his administratrix specifying, among many other exceptions, the failure to charge Patty with the $ 2, 200 note, with interest, etc. After the final decree in the foreclosure suit, and pending the exceptions to the final account of Patty's guardianship, the appellees began the present suit upon Patty's bond as guardian, and the present suit has three times before been in the supreme court, and is three times reported: Patty v. Williams, 71 Miss. 837; Ames v. Williams, 72 Miss. 760, and Ames v Williams, 73 Miss. 772.

In April, 1894, this case and the suit involving the exceptions to Patty's final account of the guardianship were, for purposes of hearing, consolidated, as each involved an investigation of the amount due to appellees. Before a final decree in the consolidated causes, the appellees instituted and conducted to a successful conclusion still another suit against the widow and administratrix of Patty, based in part upon their ownership of the decree in the foreclosure suit, and they succeeded in vacating as fraudulent a conveyance of lands made by Patty to his wife, and obtained a decree ordering the lands to be sold to pay them $ 1, 797.90--the balance of said decree after sale of the lands in the deed of trust.

At the hearing of the consolidated suits, from the decree in which the present appeal is prosecuted, it was shown that the $ 2, 200 note was good, and could have been collected at the time Patty became guardian and received the note as such. The proceedings and decrees in all the suits above mentioned were offered in evidence, and the appellants contended that the appellees were estopped thereby from claiming any greater sum as due on account of said note, than that which was adjudged to be due on it in the foreclosure suit and in the suit to vacate the fraudulent conveyance. The court below did not take this view, but decreed liability as if Patty had collected the note in his lifetime, and interest was calculated with annual rests. The foregoing statement contains all the facts deemed necessary to be stated, in view of the opinion of the court.

Affirmed.

C. B. Ames, for appellants.

When Patty was appointed guardian of appellees, he owed a note payable to their father, which was then due. This note was never paid by Patty. After his death there were two inconsistent courses left open to them with regard to this note. The one was to accept the note as assets coming into their hands; the other was to regard that as done which should have been done, and treat the note as having been collected by Patty, thereby charging him on his bond with the proceeds thereof. These two courses were utterly inconsistent with each other. The one was to treat the note as paid; the other was to regard the note and trust deed, securing it, as still in existence and unsatisfied. They elected the latter remedy. On two separate occasions they came into the chancery court and procured relief solely upon the ground that this note and trust deed was still outstanding assets in their hands and unsatisfied.

After having exhausted their rights upon that theory of the case, they now come into court and ask for further relief, based upon a wholly inconsistent theory of the case. Having exhausted the power of the court to aid them, because of the existence of the note and trust deed, they now come into the very same court and seek relief because of the nonexistence of the very same note and trust deed.

They do not even have the grace to ask for damages for failure on the part of Patty to collect the note. On the contrary, the relief they now claim is wholly inconsistent with a prayer for damages, because it presupposes the collection of the note at the time of Patty's appointment. In this proceeding they do not...