Hendrix v. Richards
| Decision Date | 23 February 1899 |
| Citation | 78 N.W. 378,57 Neb. 794 |
| Parties | HENDRIX v. RICHARDS ET AL. |
| Court | Nebraska Supreme Court |
1. A transfer of the personal property of a minor by his guardian must be authorized or directed by the proper court of probate.
2. A guardian of a minor, to whom a note and its accompanying mortgage were made payable, resigned the guardianship, and his successor was appointed. The outgoing one retained the note and mortgage, and delivered to the incoming one a sum of money and some personal property in lieu thereof, or as a consideration for the retention by the former of the note and mortgage. In the absence of evidence that the ward received the benefit of said money and property, held, that the attempted transfer of the note and mortgage was not effective.
3. Parties who had purchased the land on which the mortgage herein in question rested as a lien, subsequent to the resignation of the guardian, who retained it in his possession, and who had knowledge of his resignation, and who had an examination of the probate records made, which disclosed no order of the court for the transfer, paid said former guardian the amount due on the debt, evidenced by the note and mortgage. Held, that said payment furnished no forceful defense against an action by an administrator of the deceased ward's estate, in which a foreclosure of the mortgage was sought.
Appeal from district court, Cass county; Ramsey, Judge.
Action by Gilbert D. Hendrix against George L. Richards and others. Judgment for defendants, and plaintiff appeals. Reversed.D. O. Dwyer, for appellant.
A. N. Sullivan, for appellees.
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...
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