Willis v. Rice

• Decision Date: 26 November 1908
• Citation: 157 Ala. 252,48 So. 397
• Parties: WILLIS v. RICE ET AL.
• Court: Alabama Supreme Court

48 So. 397

157 Ala. 252

WILLIS v. RICE ET AL.

Supreme Court of Alabama

November 26, 1908

Rehearing Denied Jan. 14, 1909.

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Action by Kate Rice and another against Byrd C. Willis. From a decree for complainants, defendant appeals. Affirmed.

See also, 141 Ala. 168, 37 So. 507, 39 So. 991.

Inge &amp Armbrecht and Hamilton & Thornton, for appellant.

Erwin & McAleer, for appellees.

DENSON J.

The purpose of this litigation is to compel Byrd C. Willis, guardian of complainants, Mrs. Kate Rice (née Brasfield) and Sallie Brasfield, to make settlement of his accounts as such guardian, Willis became guardian of complainants, by appointment of the probate court of Greene county, when they were infants of tender years. The guardianship was subsequently removed to Mobile county, where the guardian had taken up his residence. Said guardianship continued through the period of the wards' minority.

The bill shows that an annual or partial settlement was made of his accounts by the guardian on the 10th day of April, 1891, on which settlement a decree was rendered against him in favor of each of the wards. Kate attained her majority on August 6, 1898, and the bill avers that on December 17, 1898, the guardian had her to sign a written instrument acknowledging full settlement with her of his accounts as guardian, and asking that the probate court discharge him as her guardian. On January 1, 1900, Sallie came of age; and it is averred that on the 21st of May, 1900, Willis had her to sign an instrument similar to that signed by Kate. It is charged in the bill that the guardian had each of said instruments filed with the judge of probate in Mobile county, and induced the court to enter, on the 19th of December, 1898, without any notice to Kate, a decree discharging him as such guardian of her estate, and likewise induced the court to enter, on June 6, 1900, similarly, a decree discharging him as such guardian of Sallie's estate.

This is the third time the cause has appeared in this court on appeal. On the first appeal we held the bill sufficient in its averments in respect to fraud practiced upon or undue advantage taken of complainants by the guardian in procuring them to sign the written instruments referred to, and touching this phase of the case we used the following language: "There is no merit in the assignment that it is not shown how the respondent took advantage of the complainants in the matter of signing the paper acknowledging full settlement. His relation was one of the greatest confidence and trust, and called for the utmost of good faith. It was his duty to fully inform them of their rights in all respects. It charged that he took advantage of their youth and inexperience and of his influence over them in getting them to sign the paper, which, they further charge, was untrue in its statements. This was sufficient. They were his wards from tender years, and had lived with him and grown up under his care and control; and it requires no effort to understand how easily they might be influenced by him against their interests." Willis v. Rice, 141 Ala. 168, 37 So. 507, 109 Am. St. Rep. 26. But it was also held on that appeal that "a bill to impeach a decree for fraud, though not within the terms of the statute which bars a bill of review after a lapse of three years, must by analogy be governed by the same limitations"--citing Gordon's Adm'r v. Ross, 63 Ala. 363. The bill was filed June 25, 1902, and it was held that no sufficient reasons were then shown in the bill to relieve it from the bar of three years as to complainant Mrs. Rice; and, a demurrer presenting that point having been overruled by the chancellor, the decree was reversed, and a decree was here rendered sustaining the ground of the demurrer to the bill.

On the return of the cause to the chancery court the bill was amended to meet the ground of the demurrer just alluded to; and from a decree overruling the demurrer refiled to the bill as amended the respondent again appealed, and assigned the decree as error. The amendments made to the bill proceeded upon two theories, viz., lack of knowledge on the part of Mrs. Rice of the alleged fraud, and absence from the state of the respondent. The cause, on the second appeal, was considered with respect to the latter of the above theories only, and we held that the amendment to the bill brought Mrs. Rice's cause of action within the saving clause of the statute (Code 1896, § 2805). Willis v. Rice (Ala.) 39 So. 991. That section is in this language: "When any person is absent from the state during a period within which a suit might have been brought against him, the time of such absence must not be computed as a portion of the time necessary to constitute a bar under this chapter."

While the construction we have placed upon the averments of the bill in respect to their sufficiency to bring the case within the saving influence of the section of the Code cited is sound, yet we are inclined to think, with appellants' counsel, that the statute cannot be applied to a case like the one in hand, and that we fell into error in so applying it on the former appeal. The reason for its nonapplication is, as suggested by appellants' counsel: The statute ex vi termini is confined in its application to limitations provided for in the chapter of the Code in which it is found (chapter 72). The statute of limitations which, on the first appeal, was held to apply by analogy to this cause, is section 761, c. 16, Code of 1896, and the exception provided for by section 2805, being confined to limitations enumerated in chapter 72, therefore, cannot be ingrafted upon section 761 in another chapter. This conclusion is not affected by section 674 of the Code of 1896, which is in this language: "The provisions of this Code, prescribing the time within which civil suits must be commenced after the cause of action has accrued, apply to suits commenced by bill in chancery."

While the effect of this section, of course, is to apply the statute of limitations, it also makes operative all exceptions, on such statutes ingrafted, which might properly be applied in a court of law. We have seen that the exception under consideration, being confined to limitations provided for in chapter 72, cannot be extended to limitations prescribed in another chapter; and this must be true, whether the action is pending in the chancery court or in a court of law. Moreover, section 761 is an express provision for limitations of actions in the chancery court, and operates independently of section 674. These considerations were not suggested by counsel on the former appeal, nor did they occur to the court.

However, the foregoing considerations and conclusions are not conclusive of Mrs. Rice's right to maintain the bill, if the first theory--lack of knowledge of the fraud practiced--is sufficiently pleaded and proved. The bill is amply sufficient in its allegations of fraud; and it was so held on the first appeal. The amendments made to the bill by the additions of sections 12, 13, and 14 clearly point out that Mrs. Rice was not aware of the facts constituting the fraud relied on until after the decree discharging the guardian had been entered. It is also shown that the bill was filed within a year after discovery of the alleged fraud. In this state of the case section 2813 of the Code of 1896, which extends the time within which actions seeking relief on the grounds of fraud must be brought for one year after the discovery of the fraud, saves the cause of action from the statute of limitations so far as the pleading is concerned.

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