Bennett v. Bennett

• Decision Date: 01 July 1902
• Citation: 65 Neb. 432,91 N.W. 409
• Parties: BENNETT v. BENNETT.
• Court: Nebraska Supreme Court

65 Neb. 432

91 N.W. 409

BENNETT

v.BENNETT.

Supreme Court of Nebraska.

July 1, 1902.

Syllabus by the Court.

1. A plaintiff who describes himself as guardian of another will be taken to sue in his representative, and not in his personal, capacity, where the allegations of the petition and the nature of the action show clearly that such was his intent, notwithstanding the petition nowhere says expressly that he sues as guardian.

2. The judgment of a court of general jurisdiction is presumed to be regular and valid. Hence in pleading such a judgment it is enough to allege its rendition, the court by which it was rendered, and, if not a court of whose jurisdiction judicial notice is taken, that it is one of general jurisdiction, without setting forth in detail the facts whereby jurisdiction was acquired in the particular case.

3. Section 127, Code Civ. Proc., applies only to courts or tribunals of special jurisdiction.

4. The county courts of this state are courts of general jurisdiction as to all matters of probate, settlement of estates, and guardianship.

5. A guardian appointed under section 14, c. 34, Comp. St., who sues to cancel a prior conveyance by the ward, need not join the ward as a party plaintiff.

6. Leave of the court which appointed the guardian is not necessary to enable him to bring such a suit.

7. Evidence having been adduced in support of the allegations of a petition without objection, and judgment having been rendered thereon, the pleading will be construed liberally, and mere lack of definiteness or precision in allegation of essential facts will not be considered so long as such allegations are not wholly wanting.

8. In a suit to cancel a conveyance by an old man alleged to have been of weak mind, allegations that the defendant represented that the grantor's son and son-in-law were conspiring to defraud him of his land; that they were intending to bring an action against him, and would be able to procure a judgment by false evidence, and cause the land to be sold to satisfy it unless conveyed to the defendant; that the defendant promised to hold the land in trust and reconvey it; that such representations were false; that the conveyance was without consideration; and that it was procured by said false representations in consequence of the extreme old age, mental weakness, and childishness of the grantor,--state a cause of action.

9. In view of the other allegations as to the nature and circumstances of the conveyance, the allegation that it “was without consideration” sufficiently states a fact, and is not open to objection. Sac Co. v. Hobbs, 33 N. W. 368, 72 Iowa, 69, distinguished.

10. Although mental weakness may fall short of entire incompetency to transact business, if it is taken advantage of to procure a conveyance by inequitable means the conveyance may be set aside.

11. A court of equity will scrutinize jealously a transaction as to which there is ground for holding that influence has been acquired over a person of weak mind, and has been abused.

12. The circumstances under which a conveyance was made, the condition of the grantor at the time, and the injustice to him and his heirs if it is upheld, may be such as to cast upon the grantee the burden of showing that it is untainted with undue influence, imposition, or fraud, but is the intelligent and deliberate act of the grantor.

Commissioners' opinion. Department No. 2. Appeal from district court, Boyd county; Harrington, Judge.

Action by Levi Bennett, guardian of Emery W. Tuttle, against Ezra A. Bennett. Judgment for plaintiff. Defendant appeals. Affirmed.Allen & Reed, D. A. Harrington, and W. T. Wills, for appellant.

M. F. Harrington and A. H. Tingle, for appellee.

POUND, C.

In June, 1899, Emery W. Tuttle, at that time some 82 years old, conveyed his farm of 160 acres, which was substantially all the property he owned, to his brother-in-law, Ezra Bennett. In November following, Levi Bennett was appointed guardian of said Emery W. Tuttle by the county court of Boyd county, and afterwards brought this suit to set aside the conveyance. A decree was rendered in accordance with the prayer of the petition, from which this appeal is prosecuted.

A considerable portion of the argument on behalf of appellant has been directed to the sufficiency of the petition. In the title, plaintiff describes himself as “Levi Bennett, Guardian of Emery W. Tuttle,” and he does not state anywhere in the petition expressly that he sues as guardian. For this reason, and because the words “guardian of Emery W. Tuttle” might, in strictness, be treated as descriptio personæ only, it is urged that this suit is brought by Levi Bennett in his personal, and not in his representative, capacity, and is not maintainable. But so long as the plaintiff describes himself as guardian, alleges his appointment as such, and by the allegations of the petition and nature of the action shows clearly an intent to sue in his representative capacity, we may fairly so construe his pleading, notwithstanding his failure to say expressly that he sues as guardian. Williams v. Eikenbary, 36 Neb. 478, 54 N. W. 852.

It is further objected that the petition fails to allege that Levi Bennett was duly appointed guardian, and sets up no facts showing that the county court acquired any jurisdiction to make the appointment. The judgment of a court of general jurisdiction is presumed to be regular and valid. Hence in pleading such a judgment it is enough to allege the parties, its rendition and the date thereof, the court by which it was rendered, and, if not a court of whose jurisdiction judicial notice is taken, that it is one of general jurisdiction, without setting forth in detail the facts whereby jurisdiction was acquired in the particular case. Weller v. Dickinson, 93 Cal. 108, 28 Pac. 854;Kunze v. Kunze (Wis.) 68 N. W. 891, 59 Am. St. Rep. 857;Scanlan v. Murphy, 51 Minn. 536, 53 N. W. 799;City of Hammond v. Evans, 23 Ind. App. 501, 55 N. E. 784;Nicholas v. Farwell, 24 Neb. 180, 187, 38 N. W. 820;Holt Co. Bank v. Holt Co., 53 Neb. 827, 74 N. W. 259. Code Civ. Proc. § 127, by its terms, applies only to courts or tribunals of special jurisdiction. Similar provisions in the Codes of other states are so construed. Weller v. Dickinson, supra; People v. Bacon, 37 App. Div. 414, 55 N. Y. Supp. 1045. In consequence, it is unnecessary to plead that a judgment was duly recovered, where rendered by a court of general jurisdiction. As to all matters of probate, settlement of estates, and guardianship, the county courts of this state are courts of general jurisdiction. They alone have original jurisdiction over those subjects, and their jurisdiction thereof is general. People v. Gray, 72 Ill. 343; Epping v. Robinson, 21 Fla. 36; Guilford v. Love, 49 Tex. 715;Glade v. White, 42 Neb. 336, 60 N. W. 556.

Exception is taken, also, because the ward is not joined as a party plaintiff, and because there is no allegation or proof that the county court which appointed the guardian has given leave to bring this suit. The former point is contended for on the ground of the rule of equity pleading that a trustee must join his cestui que trust as plaintiff. But we think there is no ground for such a contention in this state, in view of section 32, Code Civ. Proc., and the long-settled course of practice thereunder. Walter v. Wala, 10 Neb. 123, 4 N. W. 938. As to the other points, we find nothing in the statute making such leave of court necessary, and are not impressed with the reasons for requiring it which have been urged. Section 23, c. 34, Comp. St., makes it the duty of the guardian to represent the ward in all legal proceedings; and section 26 puts him in the position of an administrator with respect to inventorying, getting possession of, and accounting for the ward's estate. If he brings suits recklessly and improvidently, he may doubtless be removed or charged with the expense in his accounts. Such seems to be the practice elsewhere. Hinchman v. Ballard, 7 W. Va. 152; McCrillis v. Bartlett, 8 N. H. 569;Trust Co. v. Garis, 190 Pa. 544, 42 Atl. 1022, 70 Am. St. Rep. 644.

Section 14, c. 34, Comp. St., provides for the appointment of guardians of persons “who by reason of extreme old age or other cause” are “mentally incompetent to have the charge and management of their property.” The petition in the case at bar alleges that plaintiff was appointed guardian “on account of the extreme old age and mental and physical weakness and incapacity of said Emery W. Tuttle.” It is argued that this allegation falls far short of the requirements of the statute, and does not suffice to show a proper appointment or any cause of action on the part of the guardian. It will be seen, when we come to the merits of the cause, that plaintiff's case is not that the deed must fail because the grantor was wholly incapable of making it, but that it should be set aside because of fraud, imposition, and undue influence in obtaining it from an aged, infirm, and weak-minded grantor, who reposed confidence in the grantee, and was taken advantage of in the transaction. Hence we might well treat the allegations as to the grounds of the appointment as surplusage, and uphold the petition on the presumption that must be indulged as to the regularity of the judgment and order of the county court. But in any event, after judgment, the petition is to be construed liberally. Gage v. Roberts, 12 Neb. 276, 11 N. W. 306. The plaintiff and the county judge were permitted to testify as to the appointment of a guardian, without objection, and the parties stipulated in open court that plaintiff was duly appointed. So long as the defect is merely a lack of definiteness and precision in essential allegations, not a complete absence thereof, it should not be considered at this time. Barge v. Haslam (Neb.) 88 N. W. 516.

Appellant insists next that the petition fails to state a cause of action, in that the allegations of fraud are mere...