Gunter v. Henderson Molpus Co.

Citation149 Miss. 603,115 So. 720
Decision Date27 February 1928
Docket Number26921
CourtUnited States State Supreme Court of Mississippi
PartiesGUNTER et al. v. HENDERSON MOLPUS CO. [*]

Division A

Suggestion of Error Overruled March 12, 1928.

APPEAL from circuit court of Scott county. HON. G. E. WILSON Judge.

Suit by V. B. Gunter and others against the Henderson Molpus Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

Judgment affirmed.

U. B. Parker, Mize & Dudley and R. L. Lendon, for appellant.

The chancery court had no authority to appoint a guardian for these minors. Section 2083, Hemingway's Code, 1917, provides how testamentary guardians may be appointed by a parent, if no such guardian has been appointed; section 2085 provides how and for whom one may be appointed and under this section one may be appointed by the chancery court for "a minor who has an estate real or personal." Appellants in the court below contended that the claim of these minors against appellee constituted no estate. In 1926 the legislature of the state of Mississippi, realizing that no guardian could be appointed for a minor who was not an orphan and had no estate, real or personal (and be it remembered that these minors were not orphans, but that their father and mother were both living and that they had no estate), passed chapter 145, Laws 1926, providing for the appointment of guardians to minors who might have claims against the federal government. It cannot be said that these minors had no claim against the government, because under the act of congress making provisions for these payments these minor children had claims as heirs of their father, but such claim was not considered personal property.

The chancery court has no authority whatever to authorize settlement like the one involved in this case until twelve months after the guardian has been appointed. The statute is express in its restrictions. Section 2103, Hemingway's Code 1927, expressly provides that "guardians may be empowered by the court or chancellor in vacation to sell or compromise claims due their wards, on the same proceedings and under the same circumstances prescribed in reference to the sale or compromise by an executor or administrator of claims belonging to the estate of deceased person." Turning to section 1805 we find that "the court, or chancellor, in vacation, on petition for that purpose, may authorize the executor or administrator to sell or compromise any claim belonging to the estate which cannot be readily collected; but an order authorizing a sale of any claim shall not be made until after twelve months from the grant of the letters. The court or chancellor shall specify the terms, conditions and notice of such sale." Turning to the petition to the chancery court for authority to settle the claim of these appellants, which petition was filed by attorneys for appellees, without any notice or knowledge on the part of appellants, and was heard by the chancellor without the presence of either or any of the appellants, we find this statement "but such claim is one which cannot be readily collected, being doubtful both as to the liability of said Henderson Molpus Company and also as to the amount of damages, if any, recoverable." In drawing this petition able counsel for appellee were quoting the very words of the statute, which they thought and which has been generally thought authorizes the settlement of these claims. But does section 2103, read together with section 1805, authorize any such settlement? And did these sections ever intend for wrongdoers to employ their adjusters and their lawyers to prepare these petitions and appear before chancellors without any hearing whatever, and obtain any such authority as is attempted to be obtained in this case, in order to settle the claim of minor children? In Long v. Shakleford, 25 Miss. 559, the court held that a compromise settlement was good when made and entered into without fraud. A similar holding was made in 31 Miss. 346. In Martin v. Tarver, 43 Miss. 517, an administrator, acting in good faith is held competent to compromise or renew securities for or postpone payments of debts to his intestate without the sanction of the probate court.

In Montgomery v. Mutual Life Insurance Company, 111 Miss. 6, 71 So. 162, the court held that a settlement of a policy for the cash surrender value thereof was within the authority of an administrator. The court there cited authority for the decision Long v. Shackleford, 25 Miss. 559, which was decided before we had a statute like the one we have now. Our statute is plain and if it means what it says, the chancery court had no authority to authorize this settlement and if such authority had existed why was the statute, chapter 145, Laws 1926, passed by the legislature? Appellees insist that Fox v. Fairchild, 133 Miss. 617 settles the question. In this case no such question was raised. Neither the appellant, appellee or the court raised, noted, or discussed the limitations on such authority of chancellors or chancery courts to settle claims before the expiration of twelve months. It seems that no one noticed or discussed this matter. We not only admit but contend that after the expiration of time when the court would have jurisdiction to do so the chancery court would have authority to authorize the settlement of such claim as a doubtful claim. But the statute does not authorize the chancery court or give it jurisdiction to pass upon the subject until twelve months after the appointment of guardian.

We now come to appellant's replication. This replication sets out facts to more than abundantly establish fraud and if fraud is established then the replication contains sufficient answer in law to the special plea. It is positively alleged that Mr. Gunter and his wife, when the papers were signed, were hoodwinked and did not read the papers and that the bondsmen did not know that they had ever signed any such bond; that Mr. Gunter did not know until this proceeding was begun that he had been appointed guardian or was the guardian of his minor children, or that the money paid him was the property of his minor children and was paid to him as guardian.

In McRaney v. N. O. & N.E. R. R. Co., 128 Miss. 248, attorneys made a settlement under something like the same terms and conditions as was made in this case. The court held that "a judgment obtained by fraud is void and may be attacked collaterally, both in law and in equity. A reading of this case will be worth more to appellants' contention than a week's argument. In the Huff v. Bear Creek Mill Company, 116 Miss. 509, the court held that a settlement obtained by fraud and for an inadequate consideration, when properly pleaded, was a question of fact for the jury. See Kansas City & C. Railroad Company v. Chiles, 86 Miss. 361; Welch v. R. R. Co., 70 Miss. 20; Jones v. R. R. Co., 72 Miss. 22; I. C. R. R. v. Johnston, 205 Ala. 1, 87 So. 866.

The next question raised by the demurrer is that the replication sets up a collateral attack. This is amply and expressly settled in many cases, but especially McRaney v. N. O. & N.E. Railroad Company, 128 Miss. 248.

Bozeman & Cameron, for appellee.

It is the contention of appellants that under the common law and under these statutes the chancery court (section 1964 Hemingway's Code 1927; section 2137-9, Hemingway's Code 1927; section 1972, Hemingway's Code 1917), had no jurisdiction to appoint a guardian, and if it did, it exceeded its jurisdiction in authorizing a settlement before the expiration of twelve months from the granting of the letters. Fox v. Fairchild, 133 Miss. 617, 98 So. 61, decides both of these contentions against appellant. Appellants take the position that the points should not be ruled against them because the specific questions were not raised in Fox v. Fairchild. Both were necessarily involved, but they contend the court did not consider them. Lord Holt says that the word "'estate' is genus generalissimum and includes all things real and personal." Pollack denominates the term "nomen generalissimum, comprehending everything real and personal over which the testator had a disposing power." As used in our statute, the words "estate, real or personal" certainly comprise every sort of property that a minor might possibly own, including choses in action or rights of action. The code section relied upon by our adversaries as proof positive that our legislature never considered such a right of action as "an estate." The argument they make is this: "If the chancery court already had the power to grant letters of guardianship of an estate of a person entitled to receive merely a sum of money, why did the legislature in 1926 pass section 2137, Hemingway's Code 1927?" A glance at this section and the two succeeding ones will show that they refer solely to the appointment of guardians to receive funds from the federal government. The chancery court is authorized in such cases to appoint guardians merely where "the federal government refuses to pay or deliver such funds, money or property to such person and requests or demands a guardian of the estate of such person." It is perfectly evident that the legislature was merely trying to meet the requirements of the federal government in paying money and to greatly enlarge the class of those for whom guardians might be appointed. Our adversaries argue that the statute which gives the court the right to authorize a guardian to settle a claim restricts that right so that it may not be exercised within twelve months from the time of the appointment. This question was necessarily passed upon by the court in the Fox-Fairchild case, supra. The decree authorizing the settlement was entered either on the date of the issuance of the letters of guardianship, or before that, and...

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