Patty v. Williams

• Decision Date: 12 March 1894
• Citation: 71 Miss. 837,15 So. 43
• Parties: ELLA H. PATTY, ADM'X, ET AL. v. B. J. WILLIAMS ET AL
• Court: Mississippi Supreme Court

15 So. 43

71 Miss. 837

ELLA H. PATTY, ADM'X, ET AL. v. B. J. WILLIAMS ET AL

Supreme Court of Mississippi

March 12, 1894

FROM the chancery court of Noxubee county, HON. T. B. GRAHAM Chancellor.

This bill was exhibited by B. G. Williams, an adult, and by the guardian of Benton, George G. and Andrew M. Williams, against Ella H. Patty, administratrix of the estate of Robert C Patty, deceased, late chancery Clerk of Noxubee county, and against the sureties on his official bond. The bill alleges that Patty, by virtue of his office as chancery clerk, was appointed guardian of complainants, and was acting as such at the time of his death; that the estate of said Robert C Patty is largely indebted to complainants by reason of his said guardianship; that Ella H. Patty is his administratrix and, as such, has filed a final account of his guardianship of complainants; that the account is not correct, and exceptions have been filed thereto, and the account, with the exceptions thereto, is pending; that the estate of Robert C. Patty is insolvent.

In addition to the living sureties, the bill joins as defendants the widow and children of C. B. Ames, a deceased surety, who had voluntarily conveyed to them his real estate. The several tracts of land so conveyed are set out, and the bill alleges that the conveyances, being voluntary, are, in legal contemplation, fraudulent and void as to complainants. It prays that the deeds may be canceled and the land conveyed subjected to the payment of such balance as may be found due complainants by the estate of Robert C. Patty.

To this bill Ella H. Patty, administratrix, interposed her separate plea and demurrer. The grantees of Ames also demurred, and, from a decree overruling their demurrer, have appealed. The opinion sufficiently indicates the points presented by the demurrer of appellants.

Demurrer overruled, and decree affirmed.

Mayes & Harris and C. B. Ames, for appellants.

1. The state of Mississippi is a necessary party to this suit. One of the things prayed for is a money decree against the official bond on which Ames was a surety. The bill includes, among its other features, a suit on the bond, and therefore falls within the injunction of § 3056, code 1892, that bonds of all public officers shall be made payable to the state, and be put in suit in the name of the state for the use and benefit of any person injured by the breach thereof. The statute is mandatory, and it makes no difference what is the usual rule about the joinder of parties.

2. It appears from the bill that an accounting of the guardianship is still pending, and exceptions thereto are undetermined. The bill is prematurely filed, no decree having been rendered against the administratrix for any balance. It is not maintainable as a creditor's bill against the grantees of Ames. No judgment has been rendered ascertaining the amount of the indebtedness. Section 503, code 1892, which alone authorizes such bills to be filed without precedent judgment or decree, does not apply. It does not apply to any thing but conveyances technically fraudulent as distinct from those technically voluntary. Where complainant is unable to allege fraud in fact, there is no need for such a stringent proceeding in advance of a determination of the question of debt. The statute should not, by construction, be extended beyond the evil to be remedied. Bank v. Buddig, 65 Miss. 284.

Rives & Rives, for appellant.

The state is not a necessary party. Section 2117, code 1880, provides that the official bond of the chancery clerk shall serve as his guardian's bond, and that he shall be liable in all respects as their guardian. Other guardians for any misappropriation are liable to a suit in chancery by the wards directly, and not in the name of the state, yet their bonds are payable to the state; and so of administrator's bonds. That such suits are maintainable without the presence of the state as a party, see Clopton v. Haughton, 57 Miss. 787; Brasfield v. French, 59 Ib., 632; Mc Williams v. Norfleet, 60 Ib., 987; Bell v. Rudolph, 70 Ib., 234. In none of these cases was suit brought in the name of the state.

This is not a suit at law, which must be brought by the holder of the legal title, but is a suit in equity, where only parties actually interested should be joined. 1 Pomeroy's Eq. Jur., § 113.

The conveyances by Ames to appellants are voluntary, and therefore fraudulent as to creditors. A contingent claim is as fully protected as one that is absolute, and the liability of a surety is within the statute. Bump on Fr. Con., 492; Wait on Fr. Con., § 90; Pennington v. Seal, 49 Miss. 518. The grantees of Ames, therefore, stand in the attitude of holding a part of the property to which these complainants have a right to look for a satisfaction of their claims. Complainants are entitled to have the deeds canceled, and of course the grantees are necessary parties.

OPINION

CAMPBELL, C. J.

The voluntary grantees of Ames, one of the obligors on the official bond of R. C. Patty, on whom the guardianship of the minors was devolved in accordance with law, were proper parties to this suit, brought by the former wards to recover of their former guardian and his sureties for performance of official duty their estate in his hands, and to fasten liability for the result of the accounting sought on his sureties. It is true that the donees of Ames, one of those sureties, were not on...