Jackson v. Harris , 66 Ala. 565 ( 1880 )

STONE, J.

There is a good deal of testimony in this record, which we feel it our duty to disregard, under section 3058 of the Code of 1876. Leaving out of view the testimony thus ascertained to be illegal, there is no real testimony showing the circumstances under which the settlement of May 2d, 1867, was made, and the receipt of that date given. Harris, the decedent, was the guardian of Jackson, the complainant! Jackson became of age in April, 1867 ; and on the 2d day of May, 1867, Harris came to a final settlement of his guardianship, and there was decreed to complainant the sum of $2,258.79. On that day, Jackson executed a receipt, acknowledging to have “Deceived of Samuel W. Harris, guardian of the minors of Andrew Jackson, deceased, the following notes, as a final settlement of all claims against said S. W. Harris as my guardian.” Then follows a description of two notes, one on Lockhart, and the other on Allen ; the two amounting to something more than the face of the decree. The receipt shows the true amount, $2,258.79, as due from Harris, guardian, to Jackson, his ward. Lockhart paid his note to Jackson, mostly in a tract of land, deeded and conveyed to him, and the small balance in money. Jackson kept and occupied the lands one or two years, and then re-sold them to Lockhart, at a considerable loss. Part of the note on Allen was collected by Jackson. The balance was compromised, and whether the sum realized in the compromise was ever paid to Jackson, the testimony does not inform us. The present bill is filed to vacate and set aside the settlement evidenced by Jackson’s receipt, and to collect said probate decree. The effort is to collect it out of lands' descended to the heirs of Harris.

Harris, the guardian, and Jackson lived near each other, ever after the settlement, until Harris’ death, in October, 1875. They were on intimate terms, and had money-dealings, some of relatively large amounts. At Harris’ death, he owed Jackson a borro wed-money debt of a thousand dollars. This was demanded and collected from the family of Harris, while Jackson asserted no claim to the money decreed to him, until he filed this bill in May, 1877, — ten years, less one day, after he had given his receipt. During all that time, he had claimed nothing as due him in virtue of the guardianship ; dealt freely with his former guardian; proved his confidence in him in many ways, and was heard to say, several years after the settlement, his guardian had dealt honorably by him. The death of Harris, the guardian, has rendered it impossible to make proof, which, it must be supposed, could have been made, if this litigation had come off during his life-time.

A guardian, dealing with his ward shortly after the latter becomes of age, takes upon himself the onus of proving that he dealt fairly, made full communication of every fact within his knowledge, calculated to influence the conduct of the latter, and that he obtained nothing from him without his free consent, given after receiving full information of all facts, bearing on his rights and the extent of them. This the law exacts, as a necessary protection of a class of persons liable to be made the victims of the artful. But the law, in this class of cases, as in all others, requires diligence of parties who invoke its remedial aid. In Southall v. Clark, 3 Stew. & Por. 388, the advantage taken of the ward by his guardian, according to the averments of the bill in that ease, was much greater than that charged in this case. The guardian had married the ward’s mother. The bill was filed a little more than ten years after the settlement in which the fraud was charged. This court said: “More than ten years had elapsed from the date of that settlement, before relief was sought, and, then, no peculiarity of circumstances is shown, why the complainant ■ was so slow in becoming correctly informed as to his rights.” Relief was denied on that ground. C. J. Lipscomb, in his opinion in that case, quoted approvingly the case of Meridith v. Nichols, 1 A. K. Mar. 595, in which the advantage obtained was much grosser than that charged in this case, and yet the court denied relief, on the ground that the bill was not filed until seven years after the settlement it sought to vacate.—See, also, Caldwell v. Gillis, 2 Por. 526; Myer v. Rives, 11 Ala. 760; Ferguson v. Lowery, 54 Ala. 510; Malone v. Kelly, Ib. 532.

We think the present bill, and the evidence in this record, each fails to show a satisfactory reason for such long delay in the commencement of' the suit; and for that reason, the bill was rightly dismissed. There is even doubt if the case is sufficiently made out, aside from the delay in filing the bill.

Affirmed.