Hall v. Hall , 43 Ala. 488 ( 1869 )

PETERS, J.

In courts of chancery, it is upon the allegations of the bill and the answer that the parties are to be relieved or defended. Upon these alone the chancellor predicates his decree. In this case the answer is in the nature of a cross-bill, and asks, in effect, the ratification and approval of the acts of the guardian, by which the estate of his wards has been wholly lost. Then, it should show such a narrative of facts as would have justified the allowance of such ratification, should the same have been set up in a bill for relief, under like circumstances. — Adams’ Eq. p. 343, marg.

A guardian is a trustee appointed by law, and his powers are limited by the law prescribing his duties. . If he transcends the. limits thus imposed in his dealings with the ward’s estate, he takes upon himself the responsibilities incurred by his acts. If they are hurtful to his ward’s estate, he must answer for the injury, out of his own pocket, and not impose it upon his ward. The law regulating the ordinary duties of guardians is found in the Code. If there is need to go beyond what is there laid down, he must resort to a court of chancery for advice and direction, if the powers of the court of probate are insufficient to afford the required assistance. He must manage his ward’s estate according to law. If he acts without authority of law, he takes the peril upon himself, and must suffer the consequences, if his acts are destructive to the ward’s estate. He is appointed, not to destroy the ward’s estate, nor to injure it, but to preserve it and improve it.—Revised Code, § 2426, et seq.; 2 Kent, 229-231, and notes; 2 Story’s Eq. § 977; Allen v. Martin, 36 Ala. 330.

Where the law has prescribed rules for the management of the ward’s estate, as it has done in this case, neither public opinion nor the advice of friends is sufficient authority to disregard the law. In West, Oliver & Co. v. Ball & Crommelin, which was a case in principle quite similar to this, Chief-Justice Collier declares, that “ it has been repeatedly decided, that the usage of no class of men can be supported in opposition to established law.”—12 Ala. 340, 347. And that case was stronger than this; because usage is sometimes treated as law, but public opinion and advice of friends never is. Usage has something fixed and regular in its action, and men consent to it as a law; but public opinion and the advice of friends are as variant as people’s faces, and as unstable as the winds; Public opinion sometimes approves and disapproves the same thing, almost before the breath is cold that expresses its vascillating judgments. Besides, men who are deliberating to do wrong, or to pursue a doubtful course, are not apt to ask advice of such friends as disapprove their purposes. Such direction is, therefore, too one-sided and too much subject to the grossest errors to excuse the violation of a legal duty. The law of this case required the moneys of the wards to be annually loaned out on mortgage or bond, with sufficient security ; and, when it was possible, the interest should have been collected and compounded.—Rev. Code, §§ 2426, 2427; Allen v. Martin, supra.

And if the money could not be so loaned, it was the duty of the guardian to keep it safely without change, as he would any other property of the wards in his hands, or invest it, under an order of the proper court. — Revised Code, §§2429,2436, 2437. The guardian here wholly failed to do this, or to make any effort to do it. He did not even obey the requisitions of the enactment to which his co-defendant now appeals for his justification. He neither asked authority to make the investment in “ interest-bearing bonds of the Confederate States,” nor after it was made, did he report his action to the proper court for its approval, as required by the enactment above referred to. Pamph. Acts, 1861, No. 54, p. 54; Act Dec. 9, 1861. The result is, that he is liable to make good the loss occasioned by his misconduct. The fourth section of said enactment required the investment to be reported within a certain time, and refuses credit for it, unless this is done; or a sufficient reason must be shown for the neglect to report.

Moreover, in this case the guardian himself does not pretend that he acted under any law, or that any existed, which authorized him to deposit his wards’ moneys in the Bank of Mobile, in the manner that he did. He alleges, that he made the deposit, and “ was forced by public opinion, and from his own best judgment of what was best, to take Confederate treasury-notes” for the deposit thus made. And after thus taking the Confederate treasury-notes from the bank, he “hesitated for a long time what he should do with the money, and after consulting many friends — good business men — and exercising his own best judgment, he concluded to invest in interest-bearing Confederate noteswhich he thinks was done some time in 1862. These “ notes” were safely kept by him until they were destroyed by the burning of his house, in 1865. Such excuses are wholly insufficient to justify the guardian’s conduct. They are not sanctioned by any law. These Confederate treasury-notes were never a legal tender for the payment of debts. They were never lawful money, and could not be made so by any legislature of this State, the laws of which, have recognition in this court.—Chapman, Lyon & Noyes v. Cowles, 41 Ala. 103, 112; West, Oliver & Co. v. Ball & Crommelin, 12 Ala. 340, 345; Const. U. S., Art. 1, § 10; Pasch. Ann. Const. U. S. 153, 154.

Young C. Hall, the co-defendent of the guardian in the court below, alleges, upon information, in his answer to complainants’ bill, that the funds of the wards were deposited in the Bank of Mobile, “for safe keeping, for the benefit of said wards.” But the testimony does not support this allegation. On the contrary, it shows that the information on which it was based was not true. The proof shows that the funds were deposited by the guardian in his own name, and for his own use, and he accordingly “ checked ” them out as such. His account with the bank does not show that the wards were at all known in the transaction. There was no sum of money deposited there for them, or sum corresponding in amount with the sum that belonged to them.

The same defendant also alleges, that when the guardian attempted, in 1862, to withdraw the funds thus deposited, “ the bank refused to pay in gold or silver, or in current bank-notes, but tendered him Confederate treasury-notes, then equal in value to the bills deposited ” by the said guardian, which were received by him, “ for said deposit or for said debt; that immediately afterwards, said Hall invested the same in Confederate interest-bearing treasury-notes, for the use and benefit of his said wards, under and by authority of several acts of the general assembly of the State of Alabama, on this subject.” But no reference is made to any law, with specific title and date of approval; nor is any such law known to this court, as a law of the State of Alabama, as now organized.

There is but one State of Alabama known to this tribunal, by its laws ; that is the State of Alabama — a member of the Union — acting under the constitution of the United States, and in conformity to its requisitions. Any other State of Alabama is an usurpation, unconstitutional, illegal and void; and the acts of its general assembly partake of its own defects. They have no legal standing in this court, unless it is shown that they have been re-enacted or adopted by the rightful government of the State. That the rebel government was an organized political body within the limits of this State, is not enough to give its enactments the force of laws. It must be a State admitted into the Union, and must derive its powers from the constitution and laws of the United States.—Scott v. Jones, 5 How. 343; Cherokee Nation v. Georgia, 5 Pet. 18.

The rightful State of Alabama, the only one known to this court as a State, has never been out of the Union ; nor has it ever been destroyed, though its government has been suspended. The ordinance of secession was a nullity. It neither overthrew the State, nor repealed its laws. Its effects were therefore nothing. This i/3 expressly affirmed by the supreme court of the United States, in the case of Mauran v. Insurance Company, in which, in speaking of the rebelling States, that court says : “ We agree, that all the proceedings of these eleven States, either severally, or in conjunction, by means of which the existing governments were overthrown and new governments erected in their stead, were wholly illegal and void, and that they remained, after the attempted separation and change of government, in judgment of law, as completely under all their constitutional obligations as before. The constitution of the United States, which is the fundamental law of each and all of them, not only afforded no countenance or authority for these proceedings, but they were in every part of them in express disregard and violation, of it.—6 Wall. pp. 1, 13 and 14. Then the rebel State government of Alabama was unconstitutional and wholly void ; for what is unconstitutional is illegal and void, so far as law is concerned. And inasmuch as the rightful State of Alabama was never destroyed or out of the Union, no new State could be formed or erected within its boundaries, without the consent of congress, which was neither asked or obtained.—Constitution United States Art. 4, § 3, cl. 1; Pasch. Ann. Const. 234, 235. The general assembly of this illegal government and its laws could be no better than itself. All were void. Ex nihilo nihil fit. To give such laws any validity would be to justify, so far as such laws went, the abortive attempt to overthrow the Union itself. These rebel governments have been declared illegal, and consequently void, by all the departments of the government of the United States, which is the supreme government in this nation ; the legislative, the executive, and the judicial, all concur in denouncing them as illegal.—Act of Congress, March 2d, 1867; President Johnson’s Proclamation, June 21st, 1865; Mauran v. Insurance Company, 6 Wall. pp. 1, 13 and 14; Texas v. White et al., January term Supreme Court U. S., 1869. The law, then, which is presumed to be appealed to by the defendant, Young C. Hall, in his answer in the court below, is not a law of this State, as at present organized; and it never was a law of the rightful State of Alabama. Nor is it a law of such character as State or national comity requires should be treated with any respect. It afforded the guardian no authority to deal with his ward’s estate as he has done; because it carried with it no authority to bestow for that purpose. The enactment of the insurrectionary legislature, purporting to have been approved on December 9th, 1862, is supposed to be that relied on. It is entitled, “ An act to authorize executors, administrators, guardians, and trustees to make loans to the Confederate States, and to purchase and receive in payment of debts due them, bonds and treasury-notes of the Confederate States, or the State of Alabama, and coupons which are due on bonds of the Confederate States and for said State.” Pamphlet Acts, 1861, pp. 53,54. This enactment proclaims in its caption an unlawful purpose — a purpose in direct contravention of the constitution and policy of the government of the United States; and it was made to aid its overthrow and secure its destruction. It was in effect a war measure. It attempted to legalize the loaning of funds to the public enemy at war with the nation. This is forbidden. To give this enactment validity as a law, would be to declare, that the rebel organization holding control of the State of Alabama, was the legal government of the State, during the whole course of the late war, and that such government, for the time being, was a government in the State of Alabama above the constitution and laws of the United States, and that its enactments were legal; that is, they clothed those who acted under them, with authority, as valid laws, whatever might be their nature. We can not sanction such a proposition. To allow this defense, would be to legalize and enforce the rebel laws. It would be to re-enact and adopt them. This is a legislative power, and does not belong to this department of the government of the State.—Const. Ala. Art. 2, § 1, 2. There were doubtless many things done, and some laws passed in this State during the late rebellion, which ought to be ratified and adopted, but this enactment is not one of them. To adopt it would be to sanction the late rebellion and disregard the constitution of the United States. It is known to the court, as a matter of history, that “ the Confederate States” and “ the said State” mentioned in the caption of said enactment, were rebel organizations at war with the United States, seeking to destroy that government, and that the “ bonds and notes of the Confederate States, or the State of Alabama,” were issued by such rebel organizations in aid of such rebel war ; and as such they are illegal and void. If the rebellion failed, as every patriotic citizen had good reason to believe and to desire, then they were inevitably bound to be utterly worthless. They were not such a currency as any State government, whether de facto or de jure, within the limits of the Union, could make a legal tender for the payment of debts; unless, perhaps, the agreement was to pay in such currency. And even then it may be doubted whether the courts of the State, as at present organized, would enforce such contracts, as being tainted with crime, and in contravention of public policy.—28 Ala. Rep. 514.

It seems that this might suffice to settle the merits of this case ; but as it was pressed in oral argument at the bar, by the eminent counsel for the appellant, and is now again urged in his brief, that this case turns wholly upon a single proposition, it is fit that the court should so far consider this proposition as to settle it for the future. The proposition referred to, as the same is stated in the brief furnished to the court, is in these words : “ During the war the constitution and laws of the United States were wholly suspended in Alabama, and were revived as the forces of the United States acquired the control of the territory. The constitution and laws of the United States regained their power and control as the army did — they marched pari passu with the army.”

This seems to me undistinguishable from the doctrine laid down in the case of Watson and Wife v. Stone, 40 Ala. 450, which has been repudiated and overruled by this court. Coleman v. Chisholm, January term, 1869. If it does not mean this, it is not perceived what the presence of the army had to do with the matters involved in this case in any way. The defendants below do not insist that they are excused by any military order, or that the guardian was forced by the insurrectionary army to make an illegal investment of his wards’ estate. Unless, then, there was a government connected with this army, whose laws the army supported, and gave them validity by reason of its support, it does hot appear to me that its presence or absence was of any consequence in this suit. If, however, it is intended, that this military occupation which suspended the constitution and laws of the United States, during its continuance, gave validity and legality to whatever government may have been connected with it, so as to give force and effect to its laws in this court, without re-enactment or adoption by the legislative department of the government as now organized, then we can not accept the proposition as true, nor sanction the consequences attempted to be adduced from it. This court can only acknowledge such States and such governments as have been previously acknowledged by the proper political department, having the power to make such acknowledgment.—Scott v. Jones, 5 How. 343; Luther v. Borden, 7 Howard, No such government has ever been acknowledged ; therefore, this court does not know that it ever existed as a law-making authority. If it did exist as such, it was fordidden by the constitution, and was wholly illegal and void. It had no legal authority, and could communicate none to its enactments. The evil tree can not bring forth good fruit. The offspring must follow the fate of the mother.—Const. U. S. Art. 4, § 3, cl. 1; Paschal’s Ann. Const. p. 234, 235; Const. U. S. Art. 6, § 2, cl. 1; Paschal’s Ann. Const. p. 248, 249, 250; Ableman v. Booth, 21 How. 605, 525; 6 Wall. 1, 13, 14; The State of Texas v. White, et al.; U. S. Supreme Court, January term, 1869.

But if it is intended, by the proposition above stated, to insist on the validity of the enactment of the rebel organization in the State of Alabama, which purports to have been approved on the 9th day of December, 1861, and to urge this as an authority for the guardian to collect the wards’ moneys in Confederate treasury-notes, or to invest their funds in interest-bearing Confederate bonds, we must wholly refuse to give any such force.—Pamphlet Acts, 1861, p. 53, 54, No. 54. This enactment is no law of the rightful State of Alabama, and this court knows no other.—Texas v. White et al., supra. Law is a rule of civil conduct prescribed by the supreme power of the State.—1 Kent, 457, marg. And in the United States, such State, to have any legal existence as a law-making authority, must conform to the constitution of the United States.- Here, the political organization that passed this enactment was not a State; because, to make it a State, it must have been admitted into the Union, and must have conformed to the constitution and laws of the Union.—5 Pet. 18; 5 How. 342, 377; Const. U. S. Art. 4, § 3, cl. 1; Paschal’s Ann. Const. 234, 235; Texas v. White, supra.

It may also be said, that many laws are not compulsory commands, except to the courts which are charged with their enforcement. They are only enabling laws — mere permissions. A party may act under their authority, or he may refrain from acting ; and if he voluntarily acts under them, without legal compulsion, and they turn out to have been passed by an incompetent legislative body, or are forbidden by the constitution, and for that reason void, they afford no protection. Even judgments founded on such laws can not be sustained. That is the case here.

The guardian does not pretend that he acted under any legal compulsion, but only under the force of public opinion, the .advice of friends, his own best judgment, and certain acts of the rebel government of the State of Alabama. None of these, nor all of them, can authorize him to make an utter waste of his wards’ estate. If this judgment was wrong, as it now turns out to have been, he can not be permitted to visit its injurious effects on his wards. — Lewin on Trusts and Trustees, p. 366 e, marg.

Further, it may also be implied by the proposition above quoted, that, inasmuch as the constitution and laws of the United States were suspended in this State during the late war, until their restoration by the march of the federal army, then, the inhabitants of the State were freed from their constitutional obligations while this state of things lasted; and that, under such circumstances, the guardian was left without law to guide him, except that furnished by the insurrectionary occupying army, or by the power under which that army was maintained and directed ; and if when so situated, he acted in good faith, and according to his best judgment, and upon the advice of persons conversant with such matters and capable of forming a sound opinion, then he ought to be excused, if loss to his wards resulted from his conduct; or, that, to avoid anarchy and preserve good order, he owed obedience to the organization exercising the powers of a government over him, and that this duty of obedience to the governing power, which he could not resist, justified him in acting in conformity to its laws.

These ingenious theories cannot yet be said to be incorporated into American law. Here all governments and all laws, except the law of force, are limited by written constitutions, and no theories can survive a collision with these constitutions. The vice of the above constructions is, that they set up in the limits of the State of Alabama — a member of the Union — a government hostile to the supreme government of the United States, and give authority to its legislative enactments, so as to excuse those who have acted under them, without regard to the character of the acts done. Or it makes the rebel army the government of the State for the time being, with power to enact laws in violation of the constitution of the United States. It is not to be presumed that such a pretension will, in the end, be supported by the supreme judiciary of the nation, the tribunal by which these difficult and vexed questions must ultimately be settled. We cannot, therefore, accord to it a standing in the judicial decisions of this State, until it is so supported and approved.—Marbury v. Madison, 1 Cra. 137, 177, 178, 179, et seq.; Collier v. Frierson, 23 Ala. 100, 109.

The original and amended bills in this case, were each demurred to as destitute of equity. These demurrers were overruled by the chancellor. In this, we do not think he erred. The original bill alleges, that Gerald B. Hall was regularly appointed guardian of the appellees, by the probate court of Mobile county, in this State, in May, 1851; that he gave bond as such, and took possession of about $9,000 of the wards’ moneys ; that he failed and neglected to make any inventory of the same, as required by law; that he made no annual settlement of his guardianship, or any other settlement; that he did not furnish said wards with any means of education or support, and did not loan out their funds, as required by law, but had used their entire estate for his own purposes, and had utterly wasted the whole ; and that when requested by the wards to account for the funds in his hands, he refused to do so, and declared that it had been invested in Confederate securities, and had been burned up and lost. It was also stated in the bill, that the person who had been elected to the office of judge of probate of Mobile county, aforesaid, was disqualified to act and discharge the duties of his office ; and that that court was so disorganized in consequence of the incapacity of the judge elect to hold the office, that no relief could be had therein; and that the complainants’ case required the immediate and active interposition of the court. The relief asked, is a discovery of the amount of the wards’ moneys received by the guardian, an account, his removal, and final settlement.

The amended bill alleges, that at the time the guardian executed his bond as such, the term of Judge Hitchcock had just expired, and Judge Bond was elected to succeed him; that in filling up the bond, the name of Judge Hitchcock was not stricken out, and the bond, by mistake, was made' payable to him, instead of his successor, Judge Bond, as it should have been. This mistake was not observed at the time, but had occurred without the notice of any of the parties ; that the bond was intended to be filled up as a proper guardian’s bond. It was not signed by the principal and securities on the same day, but all signed it before it was approved ; and it was duly approved by Judge Bond, who was then probate judge of said county of Mobile. The prayer was for a reformation of the bond so as to make it payable to Judge Bond. The filing of the amended bill was objected to by the defendants below, and the objection was overruled by the court.

The chancery court, since its first institution as a separate tribunal, always had original jurisdiction of minors and their estates.—2 Story Eq., §§ 1327,1337,1351; 1 Spence Eq., pp. 428, 605, 611, marg. And it has long been settled, that where the jurisdiction in equity has once existed, the creation of another court, with a like jurisdiction, does not abolish the original jurisdiction in chancery, unless the law creating the new court expressly so declares. This is not so with the law creating the probate court. The jurisdiction in equity is concurrent with that at law, where the case is such, that a court of equity would have originally interfered, and it appears that the court of probate was not in a condition to perform its duties when called upon to act. — 28 Ala. 629 ; Eev. Code, §§ 698, 699 ; 1 Spence Eq., p. 433, marg.; 1 Story Eq., § 80.

It is one of the original powers of a court of chancery to reform and correct mistakes in written instruments, upon proper proof. And no authority is known in this State, which withdraws a guardian’s bond from the influence of this power. The reformation of the bond does not make a new bond, or one that the parties did not intend to make. It only makes the old bond speak the truth, as the parties to it sought to make it, when they entered into it. It is sufficient, if the signatures to the bond were made before it was approved. The matters of the amended bill might have been incorporated in the original bill, and they would not have made it bad. The allowance of the amendment was, therefore, properly made.—Whitehead v. Brown, 18 Ala. 682; Rev. Code, §§ 3356, 3358.

There is, then, no error in the record. The decree of the court below is affirmed. The appellants and their security will pay the costs of this appeal in this court, and in the court below. And the cause is remanded to the chancery court of tlie county of Mobile, with directions to- the chancellor to proceed upon the decree in that court in conformity with this opinion, and according to law.