Wainwright v. Smith

Decision Date17 April 1886
Docket Number12,495
Citation6 N.E. 333,106 Ind. 239
PartiesWainwright v. Smith et al
CourtIndiana Supreme Court

From the Hamilton Circuit Court.

The judgment is reversed, with costs.

T. J Kane and T. P. Davis, for appellant.

W Booth, for appellees.

OPINION

Mitchell, J.

This record presents a proceeding of an anomalous character. The complaint wears the double aspect of a complaint for damages and an application to set aside an order approving the final settlement report of a guardian.

The case was tried with a jury, and the trial resulted in a judgment setting aside the order discharging the guardian. It is averred in the complaint that on the 18th day of April 1882, the appellant was appointed guardian for Elvira, Emma, Francis and Nellie Burroughs; that as such he received from the sale of real estate belonging to his wards the sum of $ 91.07, and from other sources $ 36, in addition.

It is alleged that the wards were owners of an undivided interest in three lots in the town of Noblesville, which were of the value of $ 1,200. The lots had previously been sold for taxes, and a deed had been made to the purchaser. During the guardianship the tax lien was foreclosed by the holder of the tax deed, and the property was sold to satisfy the delinquent taxes, interest, penalties, etc., amounting to $ 205.88.

It is charged that the appellant negligently refused to redeem the land from the foreclosure sale, notwithstanding the father and other relatives of the wards offered to furnish a sufficient sum of money, with what was in his hands as guardian, to enable him to do so, and that the other tenants in common were ready to furnish their share of the money to redeem the land.

The complaint further charges that the appellant refused to take any steps to redeem, although he could have borrowed the money or raised it by selling part of the property to do so; that he procured an order of the court authorizing him to pay to the purchaser of the property, out of his wards' funds, the sum of $ 72 as rent; that he represented to the court in his application for the order, that it was necessary to pay out that amount, in order to provide a home for his wards, and that the representation was false; that the balance of the money in his hands as guardian was used in paying other expenses; that the title to the wards' real estate was lost by the negligence and mismanagement of the appellant, to their damage in the sum of $ 1,000.

The relief prayed is, that the approval of the final settlement report be set aside.

It is assigned for error that the complaint does not state facts sufficient to constitute a cause of action.

While the necessity for setting aside the report does not clearly appear, we have concluded that the complaint stated a sufficient cause of action for that purpose. The averment that money was improperly paid by the appellant, upon an order of the court, obtained by means of misrepresenting the facts, was, if sustained, sufficient to warrant...

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