Gentry v. Bearss

• Decision Date: 05 December 1908
• Docket Number: 15,407
• Citation: 118 N.W. 1077,82 Neb. 787
• Parties: F. J. GENTRY, GUARDIAN, APPELLANT, v. SARAH A. BEARSS ET AL., APPELLEES
• Court: Nebraska Supreme Court

118 N.W. 1077

82 Neb. 787

F. J. GENTRY, GUARDIAN, APPELLANT, v. SARAH A. BEARSS ET AL., APPELLEES

No. 15,407

Supreme Court of Nebraska

December 5, 1908

APPEAL from the district court for Buffalo county: BRUNO O HOSTETLER, JUDGE. Reversed.

REVERSED.

Warren Pratt, for appellant.

N. P McDonald and John N. Dryden, contra.

GOOD C. DUFFIE and EPPERSON, CC., concur.

OPINION

GOOD, C.

This action was instituted in the district court for Buffalo county by F. J. Gentry, as guardian of Otto J. Worrell, a minor, to determine the ownership of a promissory note and a real estate mortgage securing the same, and for foreclosure of the mortgage. The facts out of which this action arises are as follows: In 1903 A. A. Davies, as guardian of Otto J. Hansen, a minor, loaned $ 1,000 of his ward's funds to Sarah A. and Sylvester Bearss upon their promissory note secured by a mortgage on real estate in Buffalo county. The note and mortgage were made payable to Davies, as guardian. Hansen, the minor, was adopted by John B. Worrell and wife, and his name was changed to Otto J. Worrell. Davies resigned as guardian, and John B. Worrell was appointed in his stead by the probate court of Grant county, in the territory of Oklahoma. Davies transferred the property of his ward, including the Bearss note and mortgage, to John B. Worrell, the guardian of said minor. The note was indorsed and the mortgage assigned to John B. Worrell, as guardian of said minor. March 15, 1904, John B. Worrell undertook to sell the Bearss note and mortgage, and in pursuance of his purpose indorsed the note and assigned the mortgage to Edward J. Scott, and received therefor from Scott the sum of $ 1,010. Worrell, as guardian, obtained no order from the court authorizing the sale of the note and mortgage, other than the authority contained in the order of the court appointing him guardian. Some time thereafter John B. Worrell was removed as guardian of said minor, and F. J. Gentry was appointed in his stead by the probate court of Grant county. Worrell never paid over any of the proceeds derived from the sale of the note and mortgage to his successor, nor did he turn over to his successor any property of his ward. Subsequent to the giving of the note and mortgage in question the Bearsses transferred the real estate covered by the mortgage to Frank E. Wilcox. Gentry brought this action against the Bearsses, Wilcox and wife, and Edward J. Scott, alleging the facts above set forth, and further alleged that the note and mortgage were in the possession of the defendant Edward J. Scott. Plaintiff prayed to be adjudged to have title and right of possession to the note and mortgage, and for a decree of foreclosure.

The defendants Sarah A. and Sylvester Bearss and Wilcox and wife admitted the making of the note and mortgage, and Wilcox alleged the payment of two installments of interest to Scott, and that he was ready and willing to pay the amount then due upon the note and mortgage to the person the court should decide entitled thereto, and also demanded judgment against Scott for the interest paid to him in the event it should be held that plaintiff was entitled to recover such interest. The defendant Scott alleged that the sale of the note and mortgage to him by Worrell was made pursuant to an order of the probate court of Grant county, Oklahoma, and that Worrell represented at the time of the purchase that he had good right and lawful authority to sell and assign the said note and mortgage, and that said defendant Scott had no notice of any lack of authority on the part of Worrell to make a valid sale and transfer. He alleged that the amount paid by said defendant for said mortgage was the full value thereof; that no part thereof had been repaid to him, nor had any offer been made to return the same, and the plaintiff was thereby estopped to claim any interest in or title to the note and mortgage. He also alleged that plaintiff did not have legal capacity to sue. The plaintiff replied, denying the new matter set up in the answers. Upon the trial of the issues the court found in favor of the defendants and against the plaintiff, and that the defendant Edward J. Scott was the owner of the notes and mortgage and was entitled to receive payment thereof. Judgment was rendered dismissing plaintiff's cause of action. From that judgment the plaintiff has appealed.

At the outset we are confronted with the question of plaintiff's right to maintain this action. Defendants contend that, as plaintiff is a guardian appointed in another state or territory, he has not legal capacity to sue in this state. It is undoubtedly the general rule that a guardian cannot sue in the courts of another state than that of his appointment unless by statutory authority of such other state. It is a general rule that, if the petition on its face discloses a lack of capacity to sue, the defense will be waived unless raised by demurrer. 2 Abbott, Trial Brief (2d ed.), p. 1341; 15 Ency. Pl. & Pr. 473, 474. Section 94 of the code provides that lack of legal capacity to sue is a ground of demurrer if that fact appears upon the face of its petition. Section 96 authorizes the question to be raised by answer where it is not disclosed upon the face of its petition, and provides that the defense shall be waived unless taken advantage of by answer or demurrer. The construction which these sections have received by this court makes it clear that lack of capacity to sue, if disclosed upon the face of the petition, will be waived unless taken advantage of by demurrer. Claire v. Claire, 10 Neb. 54, 4 N.W. 411; Lederer v. Union Savings Bank, 52 Neb. 133, 71 N.W. 954; Clark v. Carey, 41 Neb. 780, 60 N.W. 78; Union P. R. Co. v. Vincent, 58 Neb. 171, 78 N.W. 457; Castile v. Ford, 53 Neb. 507, 73 N.W. 945. The petition in this case clearly shows upon its face the plaintiff's lack of capacity to sue. The defendants failed to demur and thereby waived this defense.

Plaintiff contends that the transfer of the note and mortgage by Worrell as guardian was absolutely void, and that the title thereto never passed to the defendant Scott, because said Worrell had never been authorized by the court making his appointment, or any other court, to sell or dispose of the note and mortgage. The law of Oklahoma then in force relating to the right of guardians to sell and dispose of personal property of the ward is contained in general sections 1530, 1535 and 1536 of the Oklahoma statutes of 1893. They are as follows:

"When the income of an estate under guardianship is (in) sufficient to maintain the ward and his family, or to maintain and educate the ward when a minor, his guardian may sell his real or personal estate for that purpose, upon obtaining an order...