McKinney v. Jones

• Decision Date: 14 March 1882
• Citation: 11 N.W. 606,55 Wis. 39
• Parties: MCKINNEY AND ANOTHER v. JONES AND ANOTHER.
• Court: Wisconsin Supreme Court

55 Wis. 39

11 N.W. 606

MCKINNEY AND ANOTHER

v.JONES AND ANOTHER.

Supreme Court of Wisconsin.

Filed March 14, 1882.

Appeal from circuit court, Grant county.

Action to foreclose a land contract. The plaintiff Antoinette McKinney and the defendants executed an agreement under seal, dated October 7, 1868, in and by which Mrs. McKinney agreed to sell and the defendants to purchase certain lands therein described for $2,100, of which sum $300 was made payable at the delivery of the agreement, and the balance in instalments, the last of which was to become due in 1874. The defendants covenanted to pay the taxes, and the agreement gave them the right to the possession of the land until default on their part. Upon full payment being made, Mrs. McKinney covenanted to cause the land to be conveyed to the defendants free of encumbrance by a good and sufficient deed of warranty in fee-simple.

The instrument also contains the following covenant of Mrs. McKinney: “The said party of the first part also agrees and binds herself to have executed and delivered to the parties of the second part, on or before the first day of April, 1869, a contract to Esther E. Graham, infant child of Robert Graham, deceased, by her guardian duly authorized, binding herself to convey all her right, title, and interest in said premises by deed in fee-simple in the law at the same time the deed is made by the party of the first part as agreed.”

In 1871 Mrs. McKinney petitioned the circuit court to license the plaintiff Brindley to sell the interest of Esther E. Graham in the land described in the above agreement with the defendants. Esther E. was a minor. She was the child of Mrs. McKinney and her former husband, Robert Graham, theretofore deceased, and Brindley was her general guardian. Her interest in the land in question was represented in the petition to be the undivided half thereof. The court thereupon appointed Brindley the special guardian of Esther E., and, upon his giving a bond, with sureties, in attempted compliance with the statute, granted the license prayed. The license is dated March 7, 1871. Brindley thereupon executed and delivered to the defendants, under his hand and seal, a contract dated March 10, 1871, as follows: “I, William Brindley, general and special guardian of Esther E. Graham, infant child of Robert Graham, deceased, in consideration of the covenants and agreements made and entered into between Silas N. Jones and Elmer A. Jones and Antoinette McKinney and A. M. McKinney, her husband, and on payment being made to me of the proportion of money belonging to my said ward on the sale of said land, which said contract bears date October 7, 1868, I will, on the fulfilment of said contract by said S. N. Jones and E. A. Jones, make and execute and deliver to said S. N. and E. A. Jones a guardian's deed of the land mentioned in said contract of all the right, title, and interest of my said ward, provided always the proportion of money belonging to my ward is paid to me for the use and benefit of said ward.”

Brindley made due report on oath of this contract to the circuit court, February 25, 1874, and the court ratified and confirmed the same by an order dated March 12, 1874, and directed Brindley to convey the land to the defendants upon their complying with the terms of their agreement. Payments are indorsed upon the contract as follows: October 17, 1868, $300; December 27, 1868, $300; April 9, 1869, $200; May 30, 1871, $100. The action was brought to foreclose the defendants' interest in the lands under the above agreements. The complaint sets out both agreements, and alleges that no payments have been made thereon except $300, October 7, 1868, and the payments of $300, $200, and $100 indorsed as aforesaid under the dates, respectively, of December 27, 1868, April 9, 1869, and May 30, 1871. The license to Brindley to sell the interest of Esther E. in the land, and the readiness of the plaintiffs to execute the conveyances called for by the agreements, if the defendants will pay the unpaid balance of the agreed price, are alleged.

The defendants demurred to the complaint on the following grounds: “(1) Because the plaintiff Esther E. Graham has not legal capacity to sell by her general guardian, William Brindley. (2) Because there is a defect of parties plaintiff in that the infant, Esther E. Graham, should have been properly made a party plaintiff, as should also Alfred M. McKinney. (3) Because several causes of action have been improperly united, the complaint showing if any separate causes of action in favor of the plaintiffs Antoinette and Esther E. (4) Because the complaint does not state facts sufficient to constitute a cause of action.”

The demurrer was overruled by the court. Whereupon the defendant answered as follows: “That except as hereinafter admitted no allegation thereof is true. They admit the making of the contract mentioned in the complaint alleged to have been signed by them, and that they made the payments therein mentioned in the complaint. And for a further defence they allege that they also paid on said contract $300 on October 17, 1868. And for a further defence they allege that the contract in the said contract agreed to be executed and delivered from Esther E. Graham, by her guardian duly authorized, to the defendants on or before April 1, 1869, as mentioned in the complaint, has never been executed or delivered to them. That on the execution and delivery of such contract so agreed to be executed and delivered, they are ready and willing to pay the full amount due upon the said contract signed by them according to the terms thereof.”

The cause was tried by the court, and the findings of fact and conclusion of law are as follows: “The court doth find that there is due to the plaintiff the sum of $1,200 principal, and that there has not been paid on said contract by said defendants the $300 dollars claimed to be paid on the seventeenth day of October, 1868; and that said defendants have paid only the sum of $900; and that the plaintiffs are entitled to the relief demanded in the complaint.”

Some other facts essential to an understanding of the questions determined by the court are stated in the opinion. The defendants appeal from a judgment against them entered in accordance with the above conclusion of law.

Alexander Provis and L. J. Woolley, for respondents.

Bushnell, Clark & Watkins, for appellants.

LYON, J.

1. The questions as to who are the proper parties plaintiff in the action, and as to the sufficiency of the complaint, are raised by the demurrer, and the appeal presents them for determination. Armstrong v. Gibson, 31 Wis. 61;Trouson v. Union Lumbering Co. 38 Wis. 202; Rev. St. p. 799, § 3070.

First. It is a general rule of law that an action concerning the estate of a minor must be by or against the minor, who, under our statute, (Rev. St. p. 716, § 2613,) must be represented by a guardian ad litem. But to this rule there are many exceptions. 3 Wait, Actions & Defences, 573. We understand one of these exceptions is where the action is upon an express contract made by the guardian for the benefit of the ward. Such an action may, it seems, be brought by or against the guardian personally. Thomas v. Bennett, 36 Barb. 197;Stevenson v. Bruce, 10 Ind. 397.

Some of the cases go upon the principle that the guardian in such a case is the trustee of an express trust, and may sue without joining his ward with him. Whether this is the true reason of the rule it is not necessary here to determine, as the rule may be upheld on other grounds. In the entitling of the summons and complaint in this action the plaintiffs are named and described thus: “Antoinette McKinney, late widow of Robert, and heir at law of Eldora Graham, deceased; and Esther E. Graham, heir at law of Robert Graham, deceased, by her guardian, William Brindley.” In form, the minor, Esther E., is here named as a plaintiff, and her guardian is not; but in the body of the complaint Mr. Brindley is referred to as a plaintiff. For example, it is alleged therein that “the plaintiff William Brindley was duly licensed to sell the land,” etc. A careful examination has satisfied us that it is the complaint of Mrs. McKinney and Mr. Brindley, and not of the former and Esther E., notwithstanding the form in which it is entitled. Looking at substance rather than form, we must hold that the guardian, and not the minor, is one of the plaintiffs; and, in that respect, there is no defect of parties plaintiff.

It is further claimed that the husband of Mrs. McKinney should have been a party to the action, because he signed a writing at the foot of the contract between his wife and the defendants, as follows: “I hereby join in the above contract with Antonette McKinney, my wife, and bind myself to do and perform all the acts necessary to convey all my interest as husband in said estate.” Presumably the interest of Mrs....