Hester v. Watkins , 54 Ala. 44 ( 1875 )

MANNING, J .

The bill in this cause was filed in 1872,, by appellant, against her former guardian, Watkins, and his surety, Douthit, to set aside a settlement of the guardianship made in September, 1862, and to compel payment in the currency or money now in use, of the amount (less than $1,000) then found due to her, and paid in the treasury notes of the late Confederate States.

No complaint is made of error in the account by which that settlement was made, or of mistake or misrepresentation in regard to the currency with which the indebtedness was discharged. Nor was any offer made to return the treasury notes before they became valueless. But it is averred that at the time of the settlement, complainant was a minor of the age of twenty years and about three months; that she was induced to enter into it, against her will and remonstrances, by the persuasions of her guardian, who was also her uncle, and had undue influence over her; and that he himself, being temporarily at home from service in the Confederate army, was urged — as he represented to her — to make the settlement by his surety, Douthit, to whom the good money belonging to her had been lent, in the year 1860, by her guardian. The Confederate currency paid to her (she further says) was exchanged for interest-bearing treasury notes of the Confederate States, with said Douthit, ana these, except $100, she always afterwards retained, and still has.

On the part of defendants, it is denied that complainant, at the time referred to, was a minor under twenty-one years, or that any persuasion, or undue influence, or influence of any kind, was used to induce her to enter into the settlement, or receive the payment made in 1862. On the contrary, they aver that the settlement was of her own seeking, and entered upon at her own instance, upon her assertion that she was over twenty-one years old; that it was made at the office of the judge of probate of the county,- the account and calculations being made up by him; that her uncle proposed that she should accept in payment the promissory note which he had received from Douthit, with a good surety to it, for the money lent to him, instead of requiring Douthit to pay the money, because it was not then convenient for him to do this; and that she insisted on having the money, the greater part of which Douthit had to borrow. Nothing appears to have been said by anybody of the payment being made in anything else than Confederate treasury notes.

Upon most of the matters in issue the evidence is conflicting. The allegations of fraud and undue influence in the bill, are not established. Complainant certainly represented herself to be over twenty-one years old in September, 1862. She asserts that she became of age in June, 1868. The testimony of the witnesses is contradictory; some affirming that she became of age in June, 1862, and others in June, 1863. ,

It is not pretended that complainant did not perfectly understand the transaction in wbicb. she took part, or tbat ber uncle, tbe guardian, obtained any advantage or profit to bimself from it; or tbat sbe supposed tbat lie thereafter considered, or beld bimself, bound as ber guardian; or tbat sbe repudiated to him or any one else tbe settlement or payment tbat bad been made; or tbat sbe was in any way prevented or hindered Bom doing so, at any time, before her bill in this cause was filed, in 1872.

Tbe case presented is one of tbe acceptance by complainant, in 1862, of Confederate currency in payment of the amount due to ber, after sbe became of age, or a short time before sbe became of age, and tbe retaining of it eight or nine years afterwards, when sbe was under no disability or influence, without objection, or claim made and pursued to set aside tbe transaction.

Our predecessors in office, some of whose opinions probably induced tbe bringing of this suit, held, in Ponder v. Scott, (44 Ala. 242), tbat the acceptance by a creditor of payment in Confederate treasury notes, of a debt due to bimself in bis own right, extinguished tbe debt.

In Anderson’s Adm’r v. McGowan, (45 Ala. 462), they ruled that such a payment made to a widow, and taken by ber without constraint in compensation for her right of dower in ber deceased husband’s estate, was a just credit in favor of tbe administrators of tbe estate against ber, on settlement. And in Catterlin v. Morgan, (50 Ala. 501), they made a like decision against a female distributee of tbe estate. Tbe court there say: “It appears tbat tbe administration was commenced prior to tbe late war, and tbat tbe balance above mentioned was tbe proceeds of property of tbe estate sold by tbe administrator. No circumstances of tbe reception of tbe Confederate funds are shown. But, on tbe 13th of September, 1864, about five weeks after tbe final settlement was made, tbe petitioner, in consideration of the amount of tbe decree in ber favor paid to ber, gave.a receipt to tbe administrator in full satisfaction of tbe decree.” And tbe satisfaction thus made in Confederate funds (tbe court beld) estopped ber from opening tbe settlement and repudiating tbe payment.

According to these cases, decided by our predecessors, and many others in this and other courts, complainant is precluded from maintaining this suit to set aside a settlement, wbicb sbe either fully concurred in when it was made, or ratified by acquiescence afterwards.

Even in cases in which one party has been defrauded by misrepresentations of another, wbicb tbe former is not aware of at the time, and’ afterwards finds out, tbe rule is tbat be is not entitled to tbe aid of a court of equity unless bo move within a reasonable time after the discovery of the fraud. In this ease, over nine years' elapsed before this suit was brought, after the settlement was made, and over eight or nine years after complainant became of age, and over six years after the 21st of September, 1865, up to which time the convention of that year declared, by ordinance, a-suspension of the statute of limitations, in consequenceof the war. And this is also a reason why it cannot be maintained.—Kern v. Burnham, 28 Ala. 428.

The decree of the chancellor is affirmed.