Kinney v. Harrett

• Decision Date: 27 April 1881
• Citation: 8 N.W. 708,46 Mich. 87
• Court: Michigan Supreme Court
• Parties: KINNEY and another v. HARRETT.

8 N.W. 708

46 Mich. 87

KINNEY and another v. HARRETT.

Supreme Court of Michigan

April 27, 1881

A guardian of minor children cannot maintain an action of ejectment for the lands of his wards. Where an action of ejectment for lands of wards was commenced in the name of the guardian, and the title was fully set out in the declaration held, that the proceedings might be amended. "Kenney" and "Kinney" held idem sonans.

Error from Kent.

C.G. & W.W. Hyde, for defendants in error.

W.D Fuller and Eben Smith, for plaintiff in error.

COOLEY J.

The defendant in error brought suit in ejectment as guardian of Arelia Kinney and Kittie L. Kinney, averring in her declaration that as such guardian, on October 8, 1870, she was possessed of certain described real estate, "to which said above-described real estate the said plaintiff as such guardian aforesaid claims the right of possession. And she also claims that the title to said lands is in the said Arelia Kinney and Kittie L. Kinney, her said wards, in fee-simple," and that being so possessed the plaintiffs in error entered and unlawfully withhold, etc. To this declaration plea in bar was interposed, but on the trial the point was made that the guardian could not maintain ejectment in her own name but must sue in the name of the wards. The point was not sustained, and the guardian recovered.

As guardianship in this state is a matter of statutory regulation, common-law rules will afford little aid in determining this question. It has been held that guardians in socage might bring ejectment in their own names, (Wade v. Cole, Ld.Raym. 130; Rex v. Inhabitants of Oakley, 10 East, 491; Byrne v. Van Hoesen, 5 John. 66; Truss v. Old, 6 Rand. 556; Hughes' Minors' Appeal, 53 Pa.St. 500;) but this species of guardianship is not recognized in this state. Guardians for nurture it is clear have no such right; they have not, even the right of possession. Anderson v Darby, 1 Nott & M. 369; May v. Colden, 2 Mass 55; Ross v. Cobb, 9 Yerg. 463; Magrunder v. Peter, 4 G. & J. 323. Guardians by appointment have the authority the statute confers. By the statute the guardian has "the case and management of the estate of the minor." Comp.Laws, � 4816. He is "to dispose of and manage all such estate and effects according to law." Id. � 4817. He is to "pay all just debts due from the ward out of his personal estate and the income of his real estate if sufficient, and if not, then out of his real estate, upon obtaining license for the sale thereof, and disposing of the same in the manner provided by law." Id. � 4830. He would have authority under this provision to make loans of the real estate during the minority, and to transfer the possession to the lessee. He is to "appear for and represent his ward in all legal suits and proceedings, unless where another person is appointed for that purpose as guardian or next friend." Id. � 4831. He may "dispose of the personal estate of the ward," (Id. � 4834;) but except when licensed by the judge of probate to sell the real estate, or to mortgage the same, (Id. � 4625,) his power over it is limited to leasing it and to the reception of the rents and profits.

If ejectment were purely a possessory action there would be reason for holding that the guardian might sue in his own name. But in this state ejectment determines the title....