Nashville Lumber Co. v. Barefield

• Decision Date: 10 January 1910
• Citation: 124 S.W. 758,93 Ark. 353
• Parties: NASHVILLE LUMBER COMPANY v. BAREFIELD
• Court: Arkansas Supreme Court

124 S.W. 758

93 Ark. 353

NASHVILLE LUMBER COMPANY v. BAREFIELD

Supreme Court of Arkansas

January 10, 1910

Appeal from Howard Circuit Court; James S. Steel, Judge; reversed.

Judgment reversed and cause remanded.

Sain & Sain, for appellant.

It is error for the court to substitute for the statutory guardian some other person as next friend to represent a minor. 31 Ark. 58; Id. 229. It is the duty of the statutory guardian to represent his ward in all suits. Kirby's Dig., § 6023; 42 Ark. 222. The record showing the minor's disabilities had been removed by the court was conclusive on collateral attack. Both the Phoenix Lumber Company and M. E. Johnson were necessary parties to the proper determination of this controversy. Kirby's Dig § 6006; 37 Ark. 517; 35 Ark. 363; 39 Ark. 70; 38 Ark 584; 61 Ark. 189.

W. P Feazel, for appellee.

The court has the power to substitute for the guardian of a minor a next friend to bring suit or to represent a minor in a suit. Kirby's Dig., § 6021. The guardian had no authority to compromise the suit with the concurring sanction of the court. Rogers on Dom. Rel., § 859; 70 Ark. 87. The court had no authority to remove the disabilities of the minor, because the minor resided in another county. 54 Ark. 627. A life tenant has no right to cut trees growing upon land, except so far as may be necessary to the proper enjoyment of her life estate in conformity to good husbandry. 63 Ark. 10; 43 W.Va. 562; 64 Am. St. R. 891.

Sain & Sain and T. D. Crawford, in reply.

In the absence of statutory restraint or bad faith, a guardian may compromise, settle, or release claims due to his ward, and the ward is bound thereby. 99 Ky. 504; 152 U.S. 303; 112 U.S. 475; 111 Ga. 743; 44 N.J.L. 67; 35 S.W. 1039. And courts will enforce such settlement. 34 N.Y. 578; 58 N.Y. 185.

OPINION

FRAUENTHAL, J.

This was an action in replevin to recover the possession of a lot of lumber and logs or their value. The plaintiffs below were C. H. Barefield, Kate E. Barefield and Ed Barefield, a minor, who sued by his next friend, C. H. Barefield. They alleged that they were the owners of certain lands in Howard County, Arkansas, and that the defendant, the Nashville Lumber Company, had wilfully entered upon said land, and, knowing that the land was owned by plaintiffs, had cut and removed the timber therefrom and converted same into said lumber and logs. The land had been owned by the father of the plaintiffs, who had died intestate a number of years before the institution of this suit. He left surviving him the plaintiffs as his only heirs, and his widow, who was the mother of plaintiffs. The land had been assigned to the widow, M. E. Barefield, as dower by the probate court, and she had sold and conveyed the timber thereon; and the defendant had by mesne conveyances obtained the same from her grantee. After the institution of this suit, and before the trial thereof, the defendant made a settlement and compromise of the said claim of the plaintiffs upon which the action was founded and of said suit by paying to the adult plaintiffs and to M. E. Barefield as the statutory guardian of said minor plaintiff the sum of $ 325; and the adult plaintiffs and said guardian of said minor executed to defendant a receipt in which they accepted said sum in full and final payment of all the said claims of all the plaintiffs against defendant and of said suit. The defendant filed a motion, asking that the action be dismissed upon the ground that the matters therein involved had been settled, and that the plaintiffs did not desire to prosecute the same further. Upon the hearing of this motion the circuit court sustained the same as to the adult plaintiffs, but overruled it as to the minor plaintiff. It thereupon discharged said C. H. Barefield as the next friend of said minor plaintiff, and appointed one T. H. Kent in his stead; and the cause then proceeded with said minor as the sole plaintiff. The defendant then filed its answer, in which it denied the material allegations of the complaint. It alleged that it had obtained the timber through said M. E. Barefield, and that it had removed same under the honest belief that it was the owner thereof. It also alleged as a defense the compromise and settlement of the claim and cause of action by the guardian of the minor plaintiff.

Upon the trial of the case the defendant offered to prove by M. E. Barefield that she was the statutory guardian of the plaintiff, Ed Barefield, and that as such guardian she had made a settlement with the defendant by which she had compromised the claim and suit of said minor plaintiff against the defendant and had received full payment thereof.

The court refused to permit the introduction of said testimony, and also refused to permit the introduction of the testimony of other witnesses to show said alleged compromise and settlement of the claim and suit by the guardian of said minor plaintiff. Amongst other instructions on behalf of the plaintiff it gave the following:

"No. 6. Under the laws of this State, a guardian cannot agree to any compromise or settlement by which the property interests of his ward are affected without concurring sanction of the court, to which he must look for authority to bind his ward; so in this case, there being no evidence that the attempted compromise or settlement was made under authority of the court, you will disregard the compromise entirely in the consideration of the case."

The jury returned a verdict in favor of the plaintiff Ed Barefield for his

proportionate amount of the lumber and logs, stating the amount in feet, and assessing the value thereof at the increased value of lumber and logs respectively. A judgment was then entered in favor of the plaintiff for a recovery of the lumber and logs or their respective values as fixed by the jury.

1. The first question to be determined upon this appeal is whether or not a guardian has the authority to agree to a compromise and settlement of a disputed claim of a minor, such as is involved in this case, without the' order or concurring sanction of the court from which he received his appointment. The claim that is involved in this case is for the recovery of personal property, and in this State there is no statute restricting the power of a guardian over the control and disposition of the personal property or choses in action belonging to the minor. At common law the guardian had large authority over the personal assets of his ward, and he had the power to sell and transfer them to persons who dealt with him honestly and in good faith. To make such sale binding and effective, it was not necessary to obtain the order or sanction of the court where he acted fairly and justly; and he had the power, with respect to choses in action coming into his hands, to make such settlements thereof as the circumstances might render proper, and which within his sound discretion he deemed best, if he acted honestly and in good faith in making such settlements. Field v. Schieffelin, 7 Johns. Ch. 150; Bank of Virginia v. Craig, 33 Va. 399, 6 Leigh 399; Mason v. Buchanan, 62 Ala. 110.

According to common law, Mr. Schouler, in his work on Domestic Relations, says, a guardian "may compromise a claim of his ward, when acting in good faith and with sound discretion." Schouler on Domestic Relations, § 343; 21 Cyc. 74.

In the case of Maclay v. Equitable Life Assurance Society, 152 U.S. 499, Mr. Justice Gray, speaking for the court, says: "A guardian, unless his powers in this regard are restricted by statute, is authorized, by virtue of his office, and without any order of court, to sell his ward's personal property and reinvest the proceeds and to collect or compromise and release debts due to the ward, subject to the liability to be called to account in the proper court if he has acted without due regard to the ward's interest."

In the case of Ordinary v. Dean, 44 N.J.L. 64, in speaking of the power of a guardian in this respect, it is said: "He stands in the same position as any other trustee, who may generally, acting in good faith, compound and release a debt due the trust estate; and such composition or release for a valuable consideration is prima facie valid and effective." If the compromise or release is made without sufficient justification or fraudulently or upon a grossly inadequate consideration, the guardian will be answerable for it in his accounts; and such compromise can be impeached upon the trial of the action in which it is presented as a defense by showing that it was not made in good faith, but in fraud of his rights. Torry v. Black, 58 N.Y. 185; Weston v. Stuart, 11 Me. 326; Manion Ry. etc. v. Ohio Valley Rd. Co., 99 Ky. 504, 36 S.W. 530.

In the case of Mason v. Buchanan, 62 Ala. 110, it is said that a guardian has the same powers as an executor or administrator with respect to choses in action coming into his hands, and that his authority to deal with the personal assets of the ward is equally as large as those of an executor or administrator. And in this State, where there is no statutory restriction, he has equally that power. In the case of Wilks v. Black, 49 Ark. 235 Chief Justice COCKRILL, speaking for the court, says: "Administrators had authority to compromise a claim or compound a debt before the statute was enacted. The common law recognized the power. * * * In the absence of collusion between the administrator and the debtor or of fraud of the latter such as would vitiate the contract, the compromise or compounding was binding upon each of the parties to it if executed upon a sufficient consideration, just as if it would be if neither party was administrator." And in that case it was held that the right of the administrator to compromise the debt due to the estate,...