Bennett v. Bird

• Decision Date: 18 November 1912
• Citation: 76 S.E. 568,139 Ga. 25
• Parties: BENNETT v. BIRD.
• Court: Georgia Supreme Court

76 S.E. 568

139 Ga. 25

BENNETT v. BIRD.

Supreme Court of Georgia

November 18, 1912

Syllabus by the Court.

There was no error in dismissing the plaintiff's petition on demurrer.

(Additional Syllabus by Editorial Staff.)

Under Civ. Code 1910, § 3084, providing that no final settlement made between a guardian and ward shall bar the ward any time within four years from calling the guardian to a settlement unless the settlement is made after a full exhibit of all the guardian's accounts, and with the full knowledge by the ward of his legal rights, and section 4380, providing that if the defendant be guilty of fraud by which the plaintiff has been debarred or deterred from his action, the period of limitations shall begin with the discovery of the fraud, the plaintiff must exercise reasonable diligence to detect the fraud before she can fix a new point for the running of the statute on the ground of concealed fraud.

A ward is not entitled, 20 years after settlement by her guardian in money, to set aside the settlement on the ground that the guardian had purchased land with the trust funds, and that she was entitled to elect to take the land, where the slightest diligence on her part would have shown the true facts.

Where a ward was 19 or 20 years of age at the time of settlement by her guardian, her minority does not excuse a delay of 20 years in bringing proceedings to vacate the settlement, where the slightest diligence would have shown the facts on which she relied for the vacation.

Error from Superior Court, Bulloch County; B. T. Rawlings, Judge.

Action by Jemima Bennett against Jefferson Bird. Judgment for defendant, and plaintiff brings error. Affirmed.

H. B Strange, of Statesboro, for plaintiff in error.

Hines & Jordan, of Atlanta, and Brannen & Booth, of Statesboro, for defendant in error.

EVANS P.J.

This is a petition by Jemima Bennett against Jefferson Bird, alleging as follows: Her father died in 1869, and her mother married the defendant. The defendant qualified as her guardian in 1870, and as such guardian received her inheritance from her grandfather, which consisted of notes to the amount of $496.46. Petitioner married in 1888, and shortly afterwards the defendant attempted to settle with her, representing that he only had in hand for her $486.03, which statement she believed to be true until within the last six months, when she was informed and advised by various persons residing in the community that the defendant had not made a full and complete settlement as such guardian with her, for the reason that shortly after receiving the notes he purchased from Samuel Harville on July 18, 1870, for the consideration of $552, a described tract of land containing 368 acres, which tract of land petitioner is advised and believes was paid for by the defendant with the notes which he had received as her share of her grandfather's estate. As the defendant sustained to her the relationship of stepfather and guardian, she naturally placed the utmost confidence in his statement made to her in connection with her estate; and she relied on and confided in the statement made by him at the time of the settlement that the amount due her was the true and correct amount, but she has recently discovered that the statement was not true, and the defendant failed to advise her of the true condition of her estate, and by his annual returns he represented to the ordinary of the county that he held money or notes for the amount stated, and so returned the same, when as a matter of fact he had no money or notes of petitioner, but the land was purchased with petitioner's notes held by the defendant as guardian, and in equity he holds the land in trust, less 150 acres which he conveyed to petitioner's husband in settlement of the amount he admitted to be due as guardian. At the time of the settlement petitioner was a minor. The settlement was made out of court, and by it she was defrauded of her property. The defendant is in possession of the remainder of the land, and has erected thereon valuable improvements equal to the rent. The prayer is to declare the title to be in petitioner, and that defendant make her a warranty title to same. The petition was dismissed on demurrer.

The obvious purpose of the petitioner is to declare a trust in the land purchased with her property. Her claim is that her property was used in the purchase of the land, and that she had the option, on arrival at majority, to elect either the money or the land; that her acceptance of a part of the land as an equivalent of the money which was due her did not deprive her of the right to elect to take all the land because she was a minor and did not know the actual facts until a short time before...