Wilkinson v. Wright, 6 Div. 409.

• Decision Date: 11 January 1933
• Docket Number: 6 Div. 409.
• Parties: WILKINSON et al. v. WRIGHT et al.
• Court: Alabama Supreme Court

153 So. 204

228 Ala. 243

WILKINSON et al. v. WRIGHT et al.

6 Div. 409.

Supreme Court of Alabama

January 11, 1933

Rehearing Denied March 15, 1934.

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity by Claude L. Wilkinson and others against James E Wright and others. From a decree sustaining a demurrer to the bill and dismissing it, complainants appeal.

Reversed and remanded.

F. D McArthur and Ivey F. Lewis, both of Birmingham, for appellants.

John T. Batten, of Birmingham, for appellees.

FOSTER Justice.

This is a bill in equity filed by the heirs of Edward L. Wilkinson, deceased, who was a non compos mentis. His wife, Hattie Ann Wilkinson, was appointed his guardian during his life, and administratrix after his death. The bill alleges that during his life, and pending the guardianship, the guardian, through decrees of the chancery and probate courts, sold the real estate of the ward to pay debts and for investment. By the terms of such sales, she received part cash, with the balance payable in installments, evidenced by the notes and mortgages of the purchasers. That she paid out of the cash so received the first installments upon two contracts by which she separately purchased two tracts from two different parties, and in which she undertook to pay the balance in deferred payments for which she executed separate mortgages. That she has paid large sums, aggregating approximately $23,000 in that manner. But that a large amount of the deferred payments have not been paid, and that the funds and resources of the estate have been exhausted, leaving nothing except what was thus invested. It alleges that the investments were made without the authority of any court, and that the vendors knew that the transactions involved the funds and effects of the ward. It also alleges that both transactions, though separate when made, have come into the ownership of one of the parties by a purchase of the notes and mortgage from the other. It seeks to have the guardianship and administration removed into the chancery court, and to disaffirm the transactions, and a restoration of the amounts which were paid on them, and to create a lien respectively for their enforcement.

The contention is made that there cannot be a disaffirmance, unless the purchase is in violation of a decree which authorized the investment, or there was fraud in making it, and insolvency of the guardian. But we think that the contention arises from a misconception of the discussion in the case of Ward v. Jossen, 218 Ala. 530, 119 So. 220, of the failure to pursue the requirements of the decree which authorized the investment. In that case an effort was made by the guardian to invest funds of the ward in real estate as authorized by the probate court on the sale of property for reinvestment. The court authorized the investment, but the guardian paid part cash and gave notes for the deferred payments without pursuing the strict authority of the decree. This court questioned the right of the probate court to approve such a transaction. It was not the fact of the failure to observe the requirements of the decree which gave rise to the right to disaffirm, but that the right to disaffirm was not curtailed by the decree, because the decree was not followed, pretermitting the question of whether the court had the right to authorize the transaction as it occurred.

Leaving out of consideration the effect of the authority of the probate court in that respect, it was there plainly held, that the guardian has no right on behalf of the ward to incur a debt in the purchase of land, nor execute a mortgage to secure any such claim; nor to invest the ward's funds in realty by accepting a contract conditioned upon further payments of the ward's funds. It is not dependent upon fraud or collusion, or insolvency. The guardian may not make such a transaction for his ward, as a matter of policy, without regard to whether injury occurs or bad faith enters into it. Without authority of the statute, a guardian had no right to invest in real estate at all. Ward v. Jossen, supra.

We are not here concerned with the question of whether the chancery court could authorize such a contract, or might approve the appropriation of notes or accounts due the ward to such uses. It is here alleged that there was no such authority conferred.

The case of Ward v. Jossen, supra, is authority for the relief sought, as respects the demurrer addressed to the equity of the bill, and it appears to have been the pattern followed by the bill.

It is also insisted that the bill is multifarious in joining the two transactions, although it is alleged that one of the respondents owns the notes and mortgages given in them both. Both the original vendors are made parties. But the question of multifariousness is not alone controlled by the fact that the one defendant is interested in the two transactions. For it also embraces the idea that there may not be joined against one defendant to his prejudice "several distinct and independent matters and thereby confound them." Ford v. Borders, 200 Ala. 70, 75 So. 398; Skains v. Barnes, 168 Ala. 426, 430, 53 So. 268; Truss v. Miller, 116 Ala. 505, 22 So. 863, 866; 21 C.J. 408, 413; Story Eq. Pleading, § 271.

In this respect it resembles a misjoinder of causes of action at law against a defendant. Skains v. Barnes, supra (page 431 of 168 Ala., 53 So. 268).

The common-law rule against the joinder of causes against the same defendant has been changed so as to permit it when they are of the same nature. Sections 9466, 9467, 9513, Code; McDougal v. A. G. S. R. R. Co., 210 Ala. 207, 97 So. 730; Ballenger v. Ballenger, 205 Ala. 595, 88 So. 826; Hitt Lumber Co. v. Sherman, 189 Ala. 681, 66 So. 639; L. & N. R. R. Co. v. Cofer, 110 Ala. 491, 18 So. 110.

But such change has not been made by statute in the equitable principle of multifariousness. Section 6526, Code.

It is said in a note to Story's Equity Pleading, page 261, in this connection: "It is in this class of cases, especially that the court may treat the bill as multifarious or not in its discretion."

It is apparent that it would be unwise to permit the joinder of all and every sort of equitable claim which a complainant might have against the one respondent, but there are instances when their joinder would serve a purpose useful to all those...