Pace v. Pace

• Decision Date: 14 May 1918
• Docket Number: 8900.
• Citation: 172 P. 1075,70 Okla. 42,1918 OK 275
• Parties: PACE v. PACE et al.
• Court: Oklahoma Supreme Court

172 P. 1075

70 Okla. 42, 1918 OK 275

PACE v. PACE et al.

No. 8900.

Supreme Court of Oklahoma

May 14, 1918

Syllabus by the Court.

A demurrer to the petition and the order of the court sustaining the same are a part of the judgment roll or record proper, and error of the trial court in passing upon said demurrer will be reviewed in this court, though no exceptions have been taken to the ruling of the trial court.

A guardian, appointed to have charge of the persons and estates of four minors, by mistake petitioned the county court having jurisdiction to order the investment of funds alleged to belong to the estate of one of said wards, which order was duly made pursuant to said petition. Lands were purchased the title to which was taken in the name of said ward, when in fact said guardian had in his possession no funds of said ward, the funds expended for such lands belonging to the estates of the other three wards. Such guardian, having resigned his guardianship, and a successor having been duly appointed and qualified, cannot maintain an action to declare a trust in said lands in favor of the other wards, and to have the title divested from the ward in whose name it was taken and vested in the other wards whose money was expended therefor.

A guardian, appointed in one proceeding for four wards, is not protected in the investment in lands of funds belonging to the estates of three of said wards by an order of the county court, upon the petition of said guardian, which by mistake alleged that such funds belonged to the estate of the other of said wards, directing the said guardian to invest funds of such other ward in said lands, which investment was accordingly made and title taken in the name of said other ward.

Commissioners' Opinion, Division No. 1. Error from District Court, Mayes County; W. H. Brown, Judge.

Action by James Pace against Thomas Jefferson Pace and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Kent V Gay, of McAlester, for plaintiff in error.

A. Lee Battenfield and Graves & Seaton, all of Pryor, for defendants in error.

RUMMONS C.

This action was instituted in the district court of Mayes county by the plaintiff against the defendants to declare a trust in certain real estate situate in Mayes county, the legal title to which was in the defendant Thomas Jefferson Pace, in favor of the defendants Rosa L. Pace, James W. Pace, and Carrie May Pace, minors, and to vest the legal title to said real estate in said Rosa L. Pace, James W. Pace, and Carrie May Pace. The defendants Rosa L. Pace, James W. Pace, and Carrie May Pace by their guardian demurred to the petition of plaintiff for the reason that the same did not state facts sufficient to constitute a cause of action. The trial court sustained this demurrer, and, the plaintiff electing to stand upon his petition, judgment was rendered for the defendants to reverse which the plaintiff prosecutes this proceeding in error.

The petition alleges that the plaintiff was the duly appointed qualified, and acting guardian of the persons and estates of Thomas Jefferson Pace, Rosa L. Pace, James W. Pace, and Carrie May Pace until January 13, 1915, at which time plaintiff resigned his guardianship, and the defendant R. D Morgan was duly appointed as guardian of the persons and estates of said minors to succeed him; that said R. D. Morgan qualified as such guardian, and is now acting as the guardian of said minors; that, on November 12, 1912, the county court of Mayes county, having jurisdiction of the guardianship of said minors, upon the petition of plaintiff, made and entered an order directing the plaintiff, as guardian, to invest the sum of $1,250 of the funds belonging to Thomas Jefferson Pace, minor, in the real estate here in controversy; that pursuant to said order the plaintiff paid the sum of $1,250 as the purchase price of said real estate, and received a warranty deed conveying title to the said Thomas Jefferson Pace; that plaintiff had made a mistake of fact in advising the said county court, in his petition to invest said funds, that said funds were the property of Thomas Jefferson Pace, a minor; that in truth and in fact plaintiff had in his possession, as guardian, no funds of Thomas Jefferson Pace, but said sum of $1,250 belonged, one-fourth, or the sum of $312.50, to Rosa L. Pace, a minor, and one-half, the sum of $625, to James W. Pace, a minor, and one-fourth, the sum of $312.50, to Carrie May Pace, a minor; that the sum of $1,250 so invested by the plaintiff, as guardian, in said real estate, the title to which was taken in the name of Thomas Jefferson Pace, belonged to the estates of Rosa L. Pace, James W. Pace, and Carrie May Pace, minors; that said Thomas Jefferson Pace holds only the naked, legal title to said real estate, and holds the same as trustee for James W. Pace, Carrie May Pace, and Rosa L. Pace, minors, in the proportions as above set out, and that said last-named minors are the equitable owners of said real estate. The petition further alleges that the plaintiff has been ordered by the county court of Mayes county to file his final report as guardian of said minors and account for all funds and property which has come into his hands as such guardian; that by reason of his mistake of fact in taking title to said real estate in the name of Thomas Jefferson Pace, a minor, when as a matter of fact the funds invested in...