Hindman v. O'Connor

• Decision Date: 03 July 1891
• Citation: 16 S.W. 1052,54 Ark. 627
• Parties: HINDMAN v. O'CONNOR
• Court: Arkansas Supreme Court

16 S.W. 1052

54 Ark. 627

HINDMAN v. O'CONNOR

Supreme Court of Arkansas

July 3, 1891

APPEAL from Phillips Circuit Court in chancery, JAMES P. BROWN Special Judge.

Decree affirmed as to Biscoe and Blanche Hindman, as to Thomas C Hindman reversed and cause remanded for proceedings consistent with this opinion.

U. M. & G. B. Rose, and John C. Palmer for appellants.

1. A curator could not sell the lands of his ward under an order of the probate court. 33 Ark. 490. Under our present law both the guardian and the curator must join in the deed. Mansf. Dig., sec. 3507.

2. Mrs O'Connor was under a disability to purchase, arising from the relation she sustained at the time of the sale. Her purchase was void. 23 Ark. 622; Mansf. Dig., sec. 3485; 38 Ark. 26; 33 id., 587; Lewin on Trusts, p. 484; Underhill on Trusts, p. 484; 46 Ark. 32; 30 id., 44; 33 id., 301; 5 Dana 507; 61 Miss. 766; Mansf. Dig., sec. 3505; 80 Ala. 11; 40 Ohio St. 640; Schouler on Ex., sec. 142; 8 Vesey, 345; 2 Johns. Ch. 259; 1 Macq., 461; 14 N.Y. 91; Mechem on Ag., sec. 463; 1 Story, Eq. Jur., sec. 322; 2 Sugd. Vendors, p. 687; 4 How., 554; Underhill on Trusts, p. 293; 9 Paige, 661; 4 Cow., 736; 98 Mo. 159; 14 Am. St. Rep., 626; Story, Eq. Jur., sec. 317; 16 Am. Dec., 616.

3. The removal of disabilities did not have the effect of starting the statute of limitations to running against minors. Their disability to sue continued until they arrived at "full age." Mansf. Dig., sec., 4471; 42 Ark. 398; 44 id., 400; 49 id., 31; Mansf. Dig., sec. 3464.

4. The emancipation order is void. The record does not show the applicant to be a resident of the county. Acts 1869, p. 45. This is jurisdictional, and the fact of residence must appear on the face of the record. 28 Gratt., 879; 6 Wheat., 119; 2 Wall., 342; 18 id., 371; Wells on Jurisdiction, sec. 162; 51 Ark. 35; 11 Wend. 648; 7 Hill, 24; Lawson, Pres. Ev., p. 27; 5 Ark. 27; ib., 358; 6 id., 41; 9 id., 480; 10 id., 316; Freeman, Judg., sec. 123; 48 Ark. 305.

5. Mansf. Dig., sec. 4474, has application to suits to set aside a sale for fraud. 31 Ark. 372.

6. The statute did not begin to run until the infants arrived at twenty-one years, and the three years clause is not applicable. 34 Ark. 590; 51 id., 297. Nor does it run until the guardianship closes. Buswell on Lim., sec. 329; 33 Ark. 658; 28 id., 191.

7. No offer to return the purchase money was necessary. 44 Ark. 293; 51 id., 299.

Stephenson & Trieber and John J. and E. C. Hornor for appellee.

1. Whatever the relation Mrs. O'Connor bore to these children terminated when the guardian filed his petition for a sale, and when she bid off the property. She was never the guardian, and at most was not fully in loco parentis. No dissent or dissatisfaction was expressed for more than six years after the confirmation of the sale, full three years of which existed after the disabilities were removed. This bars their right. 36 Ark. 390; 46 Ark. 25; 48 id., 248; 7 S. and M., 409; 45 Am. Dec. 310; 2 Pom. Eq. jur., secs. 815, 917, 965; Story, Eq. Jur., sec. 385; 86 Ky. 572; 31 Minn. 468; 20 Neb. 347; 19 id., 429; 61 Mich. 471; 27 S.C. 300. Guardians may purchase when the sale by a public officer is inevitable, and when they have no funds of their wards. 32 Pa.St. 315; 72 Am. Dec., 789; Pet., C. C., 378; 16 Ia. 284; 85 Am. Dec., 516. Appellee was not a guardian, and no duty was imposed upon her as to the conduct of management of the sale. 82 Cal. 351.

2. The purchase by a trustee is not void, only voidable, and will not be set aside in all cases by courts of equity. 36 Ark. 383; 46 id., 25; 48 id., 248; 47 id., 419. The failure of the minors to appeal, under the ruling in 36 Ark. 383, is an election to take the proceeds and discharge the trust. 39 Ark. 131; 33 id., 468; 64 Ala. 410; 38 Ill. 382; 19 id., 295; 1 Story, Eq. Jur., sec. 385.

3. Appellants were barred. The statute began to run from the confirmation of the sale. 46 Ark. 25; 44 id., 479. As to Thomas C., his disabilities were removed, and more than three years elapsed before suit.

4. It was not necessary that the order of emancipation should recite that they were citizens or residents. 10 Wheat., 193; 24 Ark. 155; 117 U.S. 255; 2 Wall., 329; Freeman, Judg., secs. 116, 118, 119, 122, 123, 126, 128; 49 Ark. 398; 44 id., 267; 11 Ark. 519. The removal of the disability of non-age sets in motion the statute. 47 Ark. 558. The rule as to coverture is distinguishable. 47 Ark. 305.

5. It was not necessary to unite the guardian and curator in order to make a deed to a minor's land. Gould's Dig., p. 574, secs. 32, 33-4; Mansf. Dig., sec. 3507.

6. No offer to refund the purchase price was made.

OPINION

BATTLE, J.

In September, 1867, Thomas C. Hindman, and on the 19th of August, 1876, Mary B. Hindman, his wife, died intestate, leaving Susie Hindman, Biscoe Hindman, Thomas C. Hindman, Jr., and Blanche Hindman, their only children, surviving them. Biscoe, Thomas C. and Blanche were minors when their parents died, Biscoe having been born on the 27th of November, 1861, Thomas C. on 23d of November, 1863, and Blanche on the 2d of December, 1865. Laura E. B. O'Connor and the mother of Mrs. Hindman were sisters, and Mrs. O'Connor (Laura E. B.) was the step grandmother of Mrs. Hindman's children, she having been the wife of their grandfather. When Mrs. Hindman was on her death-bed, she requested Mrs. O'Connor to take charge of her children, and she promised that she would to the best of her ability, and proceeded to do so, immediately after the death of Mrs. Hindman, by taking them home with her and exercising personal supervision over them. On the 5th of September, 1876, Susie, Biscoe and Thomas C. Hindman filed a petition in the Phillips probate court, stating that they and Blanche Hindman were children and heirs at law of Mary B. Hindman, deceased; that Biscoe, Thomas C. and Blanche were minors; that they were the owners in their own right of an interest in real estate in the county of Phillips in this State, and equally entitled to a distributive share in the estate of their mother, the late Mary B. Hindman; and representing that their mother had requested that Mrs. O'Connor and her husband should take charge of and have the entire control and custody of her children, and assist in the management of their property interests; and asking that B. Y. Turner be appointed curator of the estate of the minors. On the same day the probate court granted the petition, and B. Y. Turner, having given bond with approved security, was appointed curator of the estate of Biscoe, Thomas C. and Blanche Hindman. The court further ordered that the minors remain in the care and custody of Mrs. O'Connor and her husband, in accordance with the last wish and request of their mother; and appointed J. H. O'Connor, the husband of Mrs. Laura E. B. O'Connor, the attorney and next friend of the minors "to look after and render such aid and assistance to the curator as may be necessary for their interest." After this the children continued to live with Mrs. O'Connor, and she endeavored to act the part of a mother to them. They were the owners of block 17, in that part of the city of Helena known as New Helena, having thereon a valuable residence, the late home of their father and mother, and other buildings. It became delinquent for taxes for the years 1873, 1874 and 1875, and she redeemed it by paying $ 896.87, the cost of redemption. Susie, needing money to enable her to attend school and pay her debts, offered to sell and convey to her her (Susie's) interest in the block. She bought it and became the owner of one undivided fourth of the block. On the 22d of November, 1880, Bart Y. Turner, curator of the estate of the minor children, presented his petition to the Phillips probate court for an order to sell the minors' interest in the block; and the court, finding that it was to the interest of the minors that it should be sold to procure means for their support and education, ordered it to be sold on the 10th of January, 1881. The block was not sold on that day for the want of bidders; and the court again ordered it to be offered for sale and fixed the 11th of April, 1881, as the day of sale. The entire block, including the one-fourth purchased from Susie, with the consent of Mrs. O'Connor, was offered for sale on the last named day and Mrs. O'Connor, at the request of the children, bid for the same. She offered $ 4000 for the block and, no one bidding more, she was declared the purchaser. The curator reported the sale to the probate court for confirmation. It having been reported that one A. H. Johnson would have given $ 4,200, the children were dissatisfied and filed exceptions to the report. Mrs. O'Connor thereupon offered $ 4,500, and the $ 4,000 in the report was changed to $ 4,500, and the exceptions were withdrawn, and the sale was confirmed by the court; and the property was conveyed to Mrs. O'Connor. Three-fourths of the purchase money, amounting to $ 3,375, which was the proportion due the minor children, have been paid.

To set aside the purchase of the three-fourths interest of the block that belonged to Biscoe, Thomas C. and Blanche Hindman, this action was brought by them since they ceased to be minors. They contend that Mrs. O'Connor was under a disability to purchase, arising from the relation she sustained to them at the time the block was sold. Can they avoid the sale?

As a general rule, a party occupying a relation of trust or confidence to another is, in equity, bound to abstain from doing everything which can place him in a position inconsistent with the duty or trust such relation imposes on him, or which has a tendency to interfere with the discharge of such duty. Upon this principle no one placed in a situation of trust or...