Ex parte Laurie

• Decision Date: 24 September 1964
• Docket Number: 1 Div. 234
• Citation: 277 Ala. 137,167 So.2d 705
• Parties: Ex parte John J. LAURIE et al.
• Court: Alabama Supreme Court

Page 705

167 So.2d 705

277 Ala. 137

Ex parte John J. LAURIE et al.

1 Div. 234.

Supreme Court of Alabama.

Sept. 24, 1964.

Scott & Porter, Chatom, for petitioners.

Grady W. Hurst, Jr., Chatom, for respondent.

SIMPSON, Justice.

The petition prays that the writ be directed to the Honorable William G. Lindsey, as Judge of the Circuit Court of Washington County, in Equity, to require him to vacate, set aside, and hold for naught his order decreeing that the petitioner John J. Laurie, husband of Dorothy W. Laurie, guardian of Margaret Wilkins, non compos mentis, was not qualified to purchase at public sale, under orders of the court, the property of said Margaret Wilkins.

Briefly, the record discloses that Dorothy W. Laurie was the legal guardian of her mother, Margaret Wilkins, a non compos mentis; that the said ward, Margaret Wilkins, was in necessitous circumstances and that it was necessary to sell the property of Margaret Wilkins described in the proceedings for the support and maintenance of said ward; that the register of the court, as commissioner, was ordered by the court to sell said property for the purposes stated; that the register, after due advertisement, first sold the property to one Sheffield, who was the highest and best bidder for said property; that the said Sheffield refused to make good his bid and the court thereupon entered a second order for the sale of said property and at said second sale the said John J. Laurie, husband of the guardian Dorothy W. Laurie, became the purchaser; that said sale was in all respects fairly made and conducted and that his bid was the highest, best and last bid for said property. The commissioner's report showed that the sale was properly and fairly conducted and that the property sold for an amount not greatly less than its real value and requested that the court confirm and approve said sale. Thereupon certain named parties, as next friends of said Margaret Wilkins, non compos mentis, filed objections and exceptions to the commissioner's report.

On a hearing of these objections and exceptions the court ruled that one exception was well taken, i. e., that the said 'John J. Laurie, the husband of the guardian Dorothy W. Laurie, who became the final, last and best purchaser at said sale * * * was not qualified to purchase the property * * * due to the fact that said John J. Laurie was the husband of the guardian of the said Margaret Wilkins'. The decree also stated, 'The Court finds from the evidence taken in this cause orally that there was no collusion or fraud exercised by anyone in the public sale of this property'. The proceedings also show that the ward was represented throughout by a competent guardian ad litem and that the guardian ad litem filed no exceptions to the report of the sale.

It thus appears that the sole ground upon which the sale was disaffirmed by the court was that the purchaser, John J. Laurie, was the husband of the guardian Dorothy W. Laurie. In view of all the circumstances disclosed by the record, we do not think that ruling was correct. It appears that the court considered that it had no discretion but to disaffirm the sale. However, we think if there is nothing to show that the sale was not fairly and honestly conducted in accordance with the order directing the sale and in accordance with law, the trial court was in error in sustaining the objection on the stated ground.

It must be borne in mind that this was not a private sale undertaken by the guardian acting adversely to the interest of the ward. Hence Brandau v. Greer, 95 Miss. 100, 48 So. 519, is an inapt authority to control the decision here.

There appears no direct authority on the point in Alabama. The cases of Calloway v. Gilmer (1858) 36 Ala. 354, and Dunham v. Milhous (1881) 70 Ala. 596, likewise cannot be considered as authoritative to the point in issue since they were decided prior to the statute emancipating the wife by the so-called 'Woman's Rights Law' where then the husband was ruled to be the co-trustee of his wife in such circumstances. Her status is not the same now. See American National Bank & Trust Co. v. Powell, 235 Ala. 236, 246, 178 So. 21.

There is diversity of opinion on the subject in hand, as is disclosed by the following statement in 25 Am.Jur., p. 132, § 211:

'As a result of the guardian's status as a trustee, and one of a peculiarly confidential character, it is the well-established general rule that the guardian cannot be the buyer in a guardian's sale applied for and controlled by himself. But in a few cases it has been held that the guardian may purchase; and although his conduct will be watched with jealousy, yet, if it is manifest that he acted fairly, with the utmost good faith, and the transaction is free from any imputation of design on his part to gain a benefit to himself, to the...