Ellis v. Massenburg

• Decision Date: 13 March 1900
• Citation: 35 S.E. 240,126 N.C. 129
• Parties: ELLIS et al. v. MASSENBURG.
• Court: North Carolina Supreme Court

35 S.E. 240

126 N.C. 129

ELLIS et al.

v.MASSENBURG.

Supreme Court of North Carolina.

March 13, 1900.

GUARDIAN AD LITEM—INTEREST IN SUIT. In an action to set aside a deed in which infants were named as beneficiaries, it was error to allow a nominal plaintiff of record to appear in the suit as guardian ad litem for the infant defendants, though he had disclaimed all interest in the suit, and alleged that the use of his name as plaintiff was wholly unauthorized, and there was no evidence of bad faith.

Appeal from superior court, Franklin county; Hoke, Judge.

Action by O. L. Ellis and others against W. K. Massenburg. From a judgment for plaintiffs, defendant appeals. Reversed.

B. B. Massenburg, for appellant.

Cooke & Son and F. S. Spruill, for appellees.

DOUGLAS, J. This is an action to set aside a deed made by Mrs. Lucy H. Massenburg to the wife and children of her son B. B. Massenburg. The only consideration named in the deed is the nominal sum of five dollars and love and affection. The plaintiffs contend that it that time the grantor was largely indebted, beyond the value of her remaining estate, and that therefore the said deed is void as to creditors. The plaintiffs are the administrator and heirs at law of the grantor, including B B. Massenburg, while one of the heirs is the complaining creditor, in whose interest the suit appears to have been brought With the exception of this creditor, all the heirs disclaim any interest in the suit, and allege that the use of their names as plaintiffs was wholly unauthorized; but their names were not stricken out and they still appear as plaintiffs of record. B. B. Massenburg, one of such plaintiffs, was appointed guardian ad litem for his children, the infant defendants. This we think was a fatal error, which cannot be cured by any evidence of good faith or want of injustice. It makes no difference that Massenburg accepted and answered for one defendant, and refused to act for the others. While he remained even a nominal plaintiff of record, he was utterly disqualified to appear for any of the infant defendants. The fact of his partial acceptance of an unlawful trust, and even its most faithful performance, does not alter the principle. We do not mean to impute, in the slightest degree, bad faith to any one, —certainly not to Massenburg, who is defending the interests of his children with an energy and tenacity worthy of a father's love; but for some purpose of her own the complaining creditor made him a plaintiff, and she must now abide by the legal results of her act. The court has no higher duty than the protection of Infant defendants,...