Easton v. Somerville

• Decision Date: 14 April 1900
• Citation: 82 N.W. 475,111 Iowa 164
• Parties: EASTON v. SOMERVILLE ET AL. (KNOX, INTERVENER).
• Court: Iowa Supreme Court

111 Iowa 164

82 N.W. 475

EASTON

v.SOMERVILLE ET AL. (KNOX, INTERVENER).

Supreme Court of Iowa.

April 14, 1900.

Appeal from district court, Calhoun county; S. M. Elwood, Judge.

Sarah J. Knox was at one time the guardian of Alice Knox, a minor. She received, as such guardian, $1,800 in money from her husband, who was the father of Alice Knox. One thousand dollars of this amount she invested, without an order of court, in the purchase of a note, and real-estate mortgage on Dakota land, from defendant Richards. Thereafter Sarah J. Knox died, and John Somerville, defendant, was appointed executor. Plaintiff was thereupon appointed guardian for Alice Knox, and as such received the note and mortgage purchased of Richards. Some time after his appointment he commenced this action against Richards and Somerville, executor, to recover the amount of his ward's money, invested in the Dakota mortgage. In the meantime the ward arrived at age, and she intervened in the action, asking judgment against plaintiff for his neglect of duty, and against the defendants for the amount of money invested in the Dakota mortgage. The trial court rendered judgment in favor of plaintiff and against defendants for the sum of $1,225 and costs, and ordered him to return the Dakota note and mortgage. An accounting was also had between plaintiff and his ward, on intervener's petition, and the plaintiff was ordered to deposit a certain amount with the clerk of the courts for the benefit of intervener, and on so doing it was ordered that he be discharged, and his bond exonerated. Defendants and intervener appeal. Affirmed.J. C. Kerr, for appellant Richards.

E. A. Walton, for appellant Somerville.

M. R. & J. B. McCreary, for appellant Alice Knox.

B. B. Foster and Stevenson & Lavendar, for appellee.

DEEMER, J.

Alice M. Knox is the adopted child of Charles H. and Sarah J. Knox. Her stepfather died in the year, 1890, and her stepmother, Sarah J. Knox, was appointed guardian of her estate. In the year 1893 this guardian had the sum of $1,851 in her hands, belonging to her ward. In March of that year she, without authority or direction from the probate court, purchased from defendant Richards a note for the sum of $1,000, secured by mortgage on some Dakota land, that had been made to Richards by some parties named Moench. The note was indorsed to Sarah J. Knox as guardian. Mrs. Knox did not report her purchase to the probate court, as we understand it; but, if she did, her report was not approved. On February 4, 1894, Mrs. Knox died, and on April 26th of that year defendant John Somerville was appointed executor of her last will and testament. About February 10, 1894, plaintiff was appointed guardian of the person and property of Alice M. Knox, to succeed Mrs. Knox. Shortly thereafter he demanded and received from the executor, Somerville, the Moench note and mortgage, and included it in his inventory of property belonging to his ward. He also received $80 in interest thereon from defendant Richards, which he reported to the court. He also redeemed the land covered by the mortgage from tax sale; but, as soon as he learned there had been no order of the court authorizing the investment of his ward's funds in the mortgage, he immediately collected the amount paid out in redemption from tax sale from the mortgagors, with interest. Alice M. Knox attained her majority June 17, 1896, and on October 15, 1897, plaintiff filed what he called his “final report,” in which he referred to the Moench mortgage, and certain cash items received by him, amounting in all to $1,580, as all the property and money coming into his hands belonging to his ward. In December of that year the ward filed objections to the report. Two supplemental reports were filed by the guardian. The court made an order that the guardian collect and bring into court, in cash, the funds belonging to his ward, at the October, 1897, term of court; and on December 13, 1897, plaintiff filed his petition in this case, in which he seeks to recover from Richards and Somerville, executor, the amount of money belonging to his ward that was invested by Mrs. Knox, as guardian, in the Moench mortgage; claiming that the former guardian had converted that amount of her estate, and that Richards had received the same, knowing it was trust funds, and that he should account therefor. He tenders the note and mortgage to defendants, and asks judgment for the amount converted, with interest. By agreement of counsel, and with permission of the court, Alice M. Knox intervened; asking an accounting from her two guardians, and seeking to charge plaintiff with neglect and carelessness in the management of her property. The objections of Alice M. Knox to the reports of her guardian, Easton, were, by consent of parties, also brought into the case, to be considered and determined on the evidence adduced. Defendant Somerville, executor, denied the allegations of plaintiff's petition, but admitted he held, for the benefit of Alice M. Knox, certain sums bequeathed to her by the will of Sarah J. Knox. He also pleaded laches and negligence on the part of plaintiff, and an estoppel based on plaintiff's conduct with reference to the Moench mortgage. Defendant Richards denied the allegations of the petition, and also pleaded laches, negligence, and estoppel. In answer to the petition of intervention, various pleadings were filed, that need not at this time be referred to. Plaintiff in answer, however, admitted having $292.90 in cash belonging to his ward, subject to deductions for expenses, etc., but denied all negligence in the management of her estate. The trial court. as we have stated, rendered judgment against defendants for the amount of money invested by Mrs. Knox, as guardian, in the Moencn mortgage, with interest, less the sum of $80 found to have been paid by Richards. It also found that plaintiff had in his hands a balance of $157.92 belonging to his ward, which amount he was ordered to turn over to the clerk of the court for her benefit. It also found that the estate of Mrs. Knox was indebted to Alice M. Knox in the sum of $415.80, money in her hands at the time of her death, belonging to her said ward; and judgment for the amount was ordered against Somerville, as executor, and he was ordered to pay the same to Alice M. Knox. All parties save plaintiff appeal.

Some preliminary questions will be settled before going to the main points: Somerville contends that there is a misjoinder of parties and causes of action, This point does not seem to have been made in the court below, and consequently cannot be considered on appeal. Hines v. Horner, 86 Iowa, 594, 53 N. W. 317;Miller v. Railway Co., 63 Iowa, 680, 16 N. W. 567. Again, he argues that, by pursuing Richards, plaintiff elected his remedy, and cannot pursue the executor. This also seems to be presented for the first time to this court. There is no issue that justifies any such contention. Moreover, plaintiff asked judgment against both defendants for the conversion of the funds belonging to his ward; and as the remedies against the receiver of the funds and the guardian, who unlawfully converted them, are not inconsistent, there was no election of either rights or remedies. Kearney Milling & Elevator Co. v. Union Pac. Ry. Co., 97 Iowa, 719, 66 N. W. 1059. It is also contended that the district court had no jurisdiction of a cause, action, or claim against one deceased; that it should have been presented to the probate. That question was not made in the trial court by motion or otherwise. The action was before the right judge, and in the right court, but the claim or petition was not entitled as in the probate. The district court had jurisdiction. Defendant's remedy was by motion, or perhaps by demurrer; and, as he failed to exercise it, he cannot complain. Bank v. Green, 59 Iowa, 171, 13 N. W. 75;Goodnow v. Wells, 67 Iowa, 654, 25 N. W. 864;Clough v. Ide (Iowa) 78 N. W. 697. A suit in equity was the proper remedy, in the absence of objections on the part of the executor. Bank v. Johnston, 94 Iowa, 212, 62 N. W. 748;In re Allgier, 65 Cal. 228, 3 Pac. 849. Further, it is argued that the claim against the estate of Sarah Knox is barred by the statute of limitations relating to claims against estates. If this defense had been pleaded, there would be much force in the argument. But it was not. The executor appeared by counsel, and filed voluminous pleadings, setting forth his various defenses, but at no place does he plead the statutory bar. In view of the manner in which the case was tried, it seems that such a pleading was necessary, if reliance was placed on such defense. Again, it may be well doubted whether the statute relating to the time of filing claims has any application to the case. The investing of the money in the Moench mortgage without the authority of and direction of the court was, as we shall see, merely voidable. The ward, on arriving at age, might have elected to accept the mortgage. Had she done so, there would have been no liability on the part of the first guardian or of her estate. The claim then was, in a sense, at least, contingent, and did not mature during the life of the first guardian. In such cases the statute does not apply. Savery v. Sypher, 39 Iowa, 675;Wickham v. Hull, 102 Iowa, 469, 71 N. W. 352;Senat v. Findley, 51 Iowa, 20, 50 N. W. 575. Moreover, the ward was not a creditor of Mrs. Knox. The relation of debtor and creditor did not exist between them until the minor became of age. Humphreys v. Mattoon, 43 Iowa, 556;Thomas v. Pyne, 55 Iowa, 348, 7 N. W. 576. Easton was not appointed guardian until after the death of Mrs. Knox, and he held no claim against her at the time of her death, and it may well be doubted whether the statute applies to him. See In re Allgier, 65 Cal. 228, 3 Pac. 849. The estate of Sarah J. Knox is solvent and unsettled, and no prejudice can result from the allowance of the claims of plaintiff...