Hendrix v. Richards

• Decision Date: 23 February 1899
• Docket Number: 8718
• Citation: 78 N.W. 378,57 Neb. 794
• Parties: GILBERT D. HENDRIX, ADMINISTRATOR, APPELLANT, v. GEORGE L. RICHARDS ET AL., APPELLEES
• Court: Nebraska Supreme Court

78 N.W. 378

57 Neb. 794

GILBERT D. HENDRIX, ADMINISTRATOR, APPELLANT, v. GEORGE L. RICHARDS ET AL., APPELLEES

No. 8718

Supreme Court of Nebraska

February 23, 1899

APPEAL from the district court of Cass county. Heard below before RAMSEY, J. Reversed.

Reversed.

D. O Dwyer, for appellant.

A. N Sullivan, contra.

OPINION

HARRISON, C. J.

It is disclosed by the record herein that Charles H. Dill, who was then the duly appointed guardian of Otis M. Hendrix, sold, under order of the district court of the proper county, an interest of his ward in a piece of real estate, and to secure the payment of all or a portion of the sum bid for such interest in the real property--the debt being evidenced by the promissory note of the purchaser--received a mortgage on real property. Subsequently, Charles H. Dill resigned or withdrew from the guardianship and George H. Hendrix was appointed. The mortgaged land was sold to George L. and Otis C. Richards, who are the appellees herein, and they assumed and agreed to pay the mortgage debt, and they asserted in the answer in this action that they paid it to Charles M. Dill, but after he had ceased to be the guardian of Otis M. Hendrix. Dill, however, released the mortgage of record at time of the alleged payment and, apparently as guardian, he signed the discharge. Both George B. Hendrix, the guardian, and Otis M. Hendrix, the ward, died and Gilbert D. Hendrix was appointed administrator of the estate of the latter, and in the course of his duties instituted this suit to procure a foreclosure of the mortgage on the land owned by the Richards. They pleaded payment, that to Charles H. Dill being the one relied upon. Charles H. Dill was allowed to become a defendant, and in an answer admitted his appointment as guardian of Otis M. Hendrix, the sale of his ward's interest in certain land, and the reception of the note and mortgage in suit as evidence of a part of the consideration to be paid for the real estate; that he afterwards resigned the guardianship and was released therefrom and his successor appointed, to whom he pleaded he paid full value for the note and mortgage and thus became their owner. There was evidence which tended to establish that, instead of delivering the note and mortgage to his successor as guardian, he gave such party some money and some articles of personal property and kept the note and mortgage. It was also of Dill's answer that the Richards had paid to him the amount due on the note and mortgage and he released the latter of record. Issues were joined, and a trial thereof resulted in a judgment for the defendants, from which the plaintiff has appealed.

In regard to the duties of a guardian it is said in section 8, chapter 34, Compiled Statutes 1897: "Every guardian appointed * * * shall have the care and management of the estate of the minor;" and of the conditions of the bond which it is prescribed a guardian shall give is "To dispose of and manage all such estate and effects according to law, and for the best interests of the ward." (Compiled Statutes 1897, ch. 34, sec. 9.) In section 27 of the same chapter it is provided as follows: "The courts of probate in their respective...