Wilson v. Wilson

• Decision Date: 28 November 1911
• Docket Number: 16,930
• Citation: 133 N.W. 447,90 Neb. 353
• Parties: ANNA J. WILSON, APPELLANT, v. L. AUGUSTUS WILSON, APPELLEE. [*]
• Court: Nebraska Supreme Court

133 N.W. 447

90 Neb. 353

ANNA J. WILSON, APPELLANT, v. L. AUGUSTUS WILSON, APPELLEE. ^[*]

No. 16,930

Supreme Court of Nebraska

November 28, 1911

APPEAL from the district court for Gosper county: ROBERT C. ORR JUDGE. Reversed with directions.

Motion OVERRULED.

Francis G. Hamer, R. D. Stearns and Lafe Burnett, for appellant.

O. E Bozarth and Ritchie & Wolff, contra.

OPINION

ROOT, J.

This is an action for a judgment that the defendant holds title to a tract of land as trustee for the plaintiff, and for an accounting. The defendant prevailed in part, and the plaintiff appeals.

There is some conflict in the evidence, but many material facts are proved by undisputed evidence. In October, 1904, the plaintiff, the widow of W. A. Scales, who died in 1902 leaving the plaintiff and an infant daughter, Gladys, him surviving, was married to the defendant. Mr. Scales died seized of the land in dispute, and with his wife and child occupied it as a homestead at the time of his death. Walker Smith was guardian of the property of Gladys Scales. The land was mortgaged by Scales and wife to secure the payment of $ 900 borrowed money, and several interest payments were unpaid in 1904.

The plaintiff, subsequently to her last marriage, determined to bring about a sale of the land, so that the proceeds might be divided between the owners in proportion to their interests. Having this purpose in view, the guardian and Mrs. Wilson consulted counsel, and were advised that the guardian might procure a license from the district court and sell the land, provided she would waive her homestead right. Thereupon the guardian made application to the district court for license to sell all of the 320 acres in dispute in this action, but before the proceedings were consummated Mrs. Wilson became insane, and March 27, 1905 was, by the commissioners for the insane in Gosper county, committed to the asylum near Lincoln, where she remained until paroled or discharged in 1908.

July 31, 1905, the mortgagee, at the guardian's request, commenced an action to foreclose the mortgage. There was personal service of summons on all of the parties in interest and upon the superintendent of the hospital for the insane where Mrs. Wilson was confined. Mr. Wilson, having been appointed guardian of his wife's estate, answered for her, contending solely for the value of her dower estate and for the amount of a claim allowed in her favor against the estate of her deceased husband, Scales. A guardian ad litem was appointed for the infant and for the insane woman, but the record does not disclose whether he answered for his wards. The decree finds the amount due the mortgagee, the amount of taxes paid, the present value of Mrs. Wilson's dower estate, and that she was entitled to her claim against the Scales' estate. At the sheriff's sale the defendant purchased the land for $ 5,675, a greater sum than the land was worth, if we should believe the undisputed testimony on this point. After sale, but before confirmation, Mr. Wilson, having been elected sheriff of Gosper county, assigned his bid to Mrs. Bozarth, wife of his present counsel, and in her name the sale was confirmed, and to her a deed was made. In the order of confirmation the court directed the proceeds of the sale to be distributed as follows: To the mortgagee, $ 1,201.55; for costs, $ 120.65; for taxes, $ 46.53; for the guardian ad litem, $ 5; to Mrs. Wilson or to her guardian, $ 500 in lieu of her dower, and $ 419.73 in satisfaction of her claim against the Scales' estate; the remainder of the $ 2,500 to Mr. Smith, as guardian for Gladys Scales; and the notes for the remainder of the purchase price were ordered to be made payable to her and delivered to her guardian. All of which was done.

In this action the district court adjudged that the plaintiff should recover her dower and a homestead estate in the land, but burdened with a lien for $ 1,114.79, of which sum $ 458.36 was made a lien on the homestead and dower estate, and $ 656.43 a lien solely upon the dower estate. We are advised by the arguments, but not by the record, that the district court took an accounting for rents and profits and for taxes paid, and carried the balance into the decree. The defendant in his answer, among other things, pleaded that there had been an accounting in the county court in the matter of his guardianship of his wife's estate, and that subsequently that contention was appealed to the district court, where it was pending, and that in those proceedings he was pursued for the money held by him in lieu of his wife's dower interest in the land and for the rents and profits of the land in dispute. It has also been brought to our attention that the record of those proceedings has been lodged here on appeal, and that it is contended that by some chance the bill of exceptions of the evidence adduced during the trial is incomplete, to the prejudice of Mrs. Wilson.

It is, of course, elementary law that the ward may, at her election, accept the price paid by her guardian for her property or recover the property itself, without regard to the motives which impelled him to act or whether there was active fraud in the transaction. Michoud v. Girod, 45 U.S. 503, 11 L.Ed. 1076; Veeder v. McKinley-Lanning L. & T. Co., 61 Neb. 892, 86 N.W. 982; Kazebeer v. Nunemaker, 82 Neb. 732, 118 N.W. 646. The guardian also will hold as trustee, for the benefit of his ward, the title to any property he may have purchased with her funds.

There is evidence tending to prove that the plaintiff's money entered into the cash payment of $ 2,500 at the sheriff's sale, although the defendant denies that fact. The cross-examination on this point was not pressed, and we are not entirely satisfied with the disclosure, but, for the purpose of this case, shall treat the subject as though his funds were solely used for that purpose. Approaching the controversy from this standpoint, we are not satisfied that the defendant should be permitted, over his ward's objections, to retain title to this land. The relations between these parties are the most confidential known to man. The defendant, by virtue of his martial obligations and his duty as the plaintiff's...