Poullain v. Poullain
| Decision Date | 31 March 1886 |
| Parties | Poullain et al. vs. Poullain, and vice versa. |
| Court | Georgia Supreme Court |
[COPYRIGHT MATERIAL OMITTED]
Auditors. Masters. Evidence. Reasonable Doubt. Charge of Court. Gifts. Admissions. Fraud. Guardian and Ward. Ordinary. Accounts. Practice in Supreme Court. Verdict. Infancy. Amendment. Pleadings. Statute of Limitations. Before Judge Lawson. Greene Superior Court. September Term, 1885.
Anna M. Poullain and Hallie B. Poullain (the latter by next friend) filed their bill for an account and settlement against Thomas N. Poullain.
The case was referred to an auditor, who made a report, and both parties filed exceptions thereto, but defendant subsequently withdrew his exceptions, and the case was tried on those of the complainants. The bill, answer, and auditor's report are set out substantially in the report, when the case was formerly in the Supreme Court. (72 Ga, 412.)
The exceptions to the auditor's report, filed by complainants, were as follows:
1st. It is reported in said report that the title to the houseand lot in the city of Greensboro, Georgia, was in the defendant until March, 1879, and the defendant did not hold said property in trust for complainants. —To which complainants except, and allege that only the naked title to the same was in the defendant from ——1862, he having held said house and lot from the time last mentioned in trust for the complainants.
2nd. It is reported in said report that complainants had no title to the real estate in Floyd County, mentioned in the bill, and they cannot recover real estate or the proceeds of the sale of the same, for the reason that the statute of frauds prevents them from asserting title to the same, and the defendant is not estopped from pleading the said statute. —To which complainants except, and allege that they, as against the defendant, do have title to said real estate as set out in their bill, and they can recover either the value of said real estate, or the proceeds of the sale of the same, with interest on either said value, or said proceeds, and the statute of frauds does not protect the defendant from the recovery claimed by complainants.
3rd. Because it is reported in said report that the investment made by the defendant, and mentioned in his return of May 24th, 1864, to the ordinary of county first aforesaid, relieves the defendant of all liability to complainants for the money received by him, as their guardian from the administrator of their father's estate.—To which complainants except and allege that said investment does not so relieve the defendant.
4th. Because it is reported that the discharge of the defendant, as guardian of the complainant, Anna M., is a bar to any right of action which said Anna M. ever had against him as such guardian. —To which complainants except, and allege that said discharge is not, under the law and the facts, a bar of said right of action.
5th. Because it is reported that the complainant, Hallie B., cannot maintain her action against the defendant, she being a minor and he being her guardian. —To which com-plainants except, and allege that said Hallie B. can maintain her action aforesaid against the defendant.
6th. Because it is reported the auditor found no evidence to establish the title of complainants to any of the Fontenoy mills property mentioned in the bill, or its dividends. —To which complainants except, and allege that the evidence amply establishes their title to said property and dividends, as claimed in the bill.
7th. Because it is reported in said report that the evidence does not show the defendant ever gave or intended to give the said real estate in Floyd County to the father of complainants, and that they have no title to the same, nor have they acquired any title to the same by prescription. — To which complainants except, and allege that the evidence does show that the defendant gave and intended to give said real estate in Floyd County to their father, as set out in the bill, and complainants have title as against the defendant, both from his gift aforesaid and by prescription to the real estate last aforesaid, and the proceeds of its sale by the defendant, or its real value.
8th. Because it is reported in said report that, in a certain event therein stated, the defendant, as guardian and trustee of the complainants, is chargeable with $7,000.07, said sum including interest to September 15, 1880.—To which complainants except, and allege that the defendant is due these complainants, after allowing him all proper credits, at least $10,500.00.
9th. Because it is reported in said report that the defendant has expended $8,347.55 for the maintenance and education of complainants, which said expenditures are an equitable set-off against the sums chargeable against the defendant as guardian and trustee—To which complainants except, and allege that the defendant can show no authority for his encroachment upon the corpus of their property claimed by him in the bill, and he is due them, in any event, the entire amount of said corpus.
In said report the auditor allowed to said defendant in- West on the disbursements. —To which allowances these complainants except, and say that the evidence Shownthe annual interest was more than the annual disbursements, and therefore, under the law, said defendant is not entitled to charge interest on the disbursements.
After the return of the case from the Supreme Court to the superior court, complainants amended the fourth exception by charging that the discharge of defendant as guardian of Anna M. Poullain was null and void, because the application was not published once a week for four weeks, and the requirements of the law were not complied with, and Anna M. never had any legal notice and was not cited, as requred by law, by the ordinary to appear at the time the dismission was granted. It was also null and void because it was procured by fraud on the part of the defendant, in that he fraudulently represented to the ordinary that, at the time the dismission was granted, he had fully discharged his duty as guardian of said Anna M., and thereby procured a discharge, when, in truth and fact, the defendant had not fully discharged his duties as guardian, and had only charged himself, as guardian, with a small sum received from the administrator of complainant's father, which arose from the sale of the personal property of the estate, when he well knew that he was indebted to complainants upon each and every item set out in their bill, and it was his duty to have charged himself with these items, which omissions were fraudulent, and made with intention to defraud complainants of the amounts justly due them, and which he never accounted for.
To this amendment defendant demurred on the following grounds:
(1.) Because it embodied a new and distinct cause of action.
(2.) Because it was barred by the statute of limitations. (3.) Because the allegations of fraud were not sufficient to set aside the judgment granting a discharge.
(4.) Because there was no averment in the amendment that the complainant, Anna M. Poullain, was ignorant of the fraud complained of at the time said discharge was granted.
This demurrer was overruled.
The court sustained the fifth exception to the auditor's report, it being an exception of law.
On the trial, the evidence for the complainants was, in brief, as follows: Defendant was appointed guardian for complainants on May 4, 1863, and gave bond for $10,000. He made only three returns altogether as follows:
On January 4, 1864, he returned a single item: "To cash in Confederate treasury notes of William McCollough, administrator of Junius Poullain, $1,600.00." (Recorded March 24, l?8t). On May 24, 1861, he made a return containing a single item, stating that he had invested $1,600 00 in Confederate four percent, bonds, and obtained a certificate of the agent of the Confederate Stales at Augusta, under the act of March 21, 1864. (Recorded July 15, 1864.) The third return was only as to Anna M. It was sworn to March 3, and recorded at the April term. 1879, of the ordinary's court, and stated that she was entitled to a half interest in $., 600.00 in Confederate bonds, which was the only property he over received as the property of his ward, and that he therewith returned to the court the bonds. On March 3, 1879, he applied for dismission as guardian of Anna M., alleging that he had fully discharged his duties, and at the April term of court he was dismissed, no objecting having been filed.
The ordinary testified that, when defendant made his final return, he saw from it that he had charged himself with only $l.600.00, and defendant stated to him that there were $1,600.00 in Confederate bonds, and witness thought at the time that they were there, and did not discover, until after the dismission was granted, that there were only $1,300.00. There was no fraud or collusion between defendant and the administrator of W. S. Poul-lain in procuring the discharge, that the witness was aware of.
It was admitted that certain eight per cent, bonds were filed with the ordinary when defendant made his application for discharge; that they were not the bonds in which defendant invested the funds of complainants, but that they had on them in defendant's handwriting the endorsement: " These bonds belong to the estate of Anna M. and Hallie B. Poullain."
Complainants introduced a letter from defendant to his wife, dated Rome, 29 November, 1856, in which defendant stated that " I have this day purchased a tract for Junius, thirteen miles from Rome, and eleven miles from Calhoun, on state road." He then proceeded to describe more in detail the improvements, and stated that the tract contained 865 acres, and that it was desirable and well worth $8,000,
Mrs. Anna M. Poullain, the mother of complainants, testified, in brief, as follows: Her husband, Junius Poullain, was a son of the defendant. They moved from Greensboro, Georgia, to ...
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