McCulla v. Brown , 178 Ark. 1011 ( 1929 )

STATEMENT BY THE COURT.

This action was brought for damages by appellant and Nettie M. McCulla for an alleged fraudulent conveyance to appellee of lands, defeating him of his right thereto, under 2454-55, C. M. Digest.

The complaint alleged that the acts done and the injury resulting were done and received while he was a minor and said Nettie M. McCulla was his guardian; that afterwards, on the 31st day of December, 1923, he attained his majority, and three years had not elapsed since that time. It was alleged that on the 21st day of February, 1918, the probate court of Crawford County directed Nettie M. McCulla to invest his moneys in land, and to take the deeds in appellant's name, and to report to the court and exhibit the deeds for its approval. The guardian invested the fund in lands bought of John B. Brown; that Brown did not convey the lands to plaintiff, as directed by the court, but made the deed therefor to said Nettie M. McCulla, knowing at the time that the court had ordered the deed thereto to be made to appellant; but, notwithstanding the court's order and the fact that he was receiving funds of the plaintiff, he executed and delivered the deed to said Nettie M. McCulla, conveying the land bought for plaintiff in Crawford County, the northeast quarter of the southwest quarter of section 34, township 9 north, range 30 west. That Nettie M. McCulla, on the same day said deed was delivered to her, executed a deed to appellant for the same land and submitted same to the probate judge for approval, and that staid official instructed said guardian to file same for record immediately. That J. B. Brown, well knowing the direction of the court and assuming to act as a friend of his guardian, advised her not to file the deed for record, and suggested that she might be able to dispose of the land at a profit, and sell same without an order of the court if it was not recorded; "at the time intending to obtain said land from her for himself and thereby defraud plaintiff out of same." That Brown then prevailed upon his said guardian to give and take a mortgage upon the land from her and a like amount of other land adjoining the same for the sum of $12,000, on the 30th day of April, 1920, and later sold said land for the sum of $12,000 and collected the purchase money therefor, prevailing upon the said Nettie M. McCulla to make the deed to the purchasers, and she did convey the same to the purchasers, T. H. Renfro and A. V. Harper, innocent purchasers, who knew nothing of the deed to the plaintiff by the said Nettie M. McCulla, and did thereby cheat and defraud the plaintiff out of his title to the said lands, which were reasonably worth the sum of $7,000. That by reason thereof appellant was caused to and did lose his estate, to his damage in the sum of $5,100. Prayed judgment in the sum of $10,200.

Appellee, on March 13, 1927, filed general and special demurrer to the complaint, alleging specially that the claim was based on an order of the probate court directing the guardian to invest the fund of the minor in lands, which was illegal and void; that it did not allege a final settlement of the guardianship was had with the probate court and the amount due the plaintiff determined by its order, nor that any suit or proceeding was ever instituted by plaintiff or that court to determine the liability of the guardian and her bondsmen.

On the 23d day of March, 1927, appellee filed a separate answer, alleging that it contained an equitable defense, and prayed transfer of the cause to equity. The answer denied each allegation of the complaint; alleged that Brown was without information as to the age of the plaintiff; demanded strict proof that he arrived at majority on the day alleged; alleged that the estate of the plaintiff amounted to only $1,415.53; that Nettie M. McCulla was duly appointed guardian, and gave bond; that if she secured an order of the court to invest her ward's funds in lands, it was illegal and void, and defendant was not bound by it; that he was without knowledge of any such order, and made the sale of the lands to Nettie M. McCulla as an individual and without any intent to deprive the minor of his estate; that no settlement of the estate had been had in the probate court and no determination of the amount due the minor, nor any proceeding had to recover the minor's estate from his guardian and the sureties on her bond. Alleged that, after he sold the lands to Nettie M. McCulla, she mortgaged them to Cooper for $3,800, and paid defendant $6,400 for them; that on December 22, 1919, she mortgaged the lands to the Bank of Alma for $5,000, and afterwards she mortgaged them to J. D. Byers for $5,000. She collected rents for the year 1918-19 in the sum of $2,601.60. That in 1920 she sold the lands to Harper and Renfro for $12,000, and that said purchasers sold the same for the sum of only $6,100, at a loss of $6,100. That each of said parties was charged with the same knowledge of the investment of the plaintiff's money as this defendant had, and each of them should have been made parties defendant in this suit in chancery court, where the rights and equities of all parties could be determined. That, in order to settle the affairs of the estate, an accounting would be necessary in order that the guardian and the bondsmen may be caused to account for all rents and profits accruing from said lands and receive credit for the support and education of the minor. Prayed a transfer to chancery court.

The cause was transferred on March 23, 1927, over objections and exceptions. Plaintiff filed his motion to remand to law, which was overruled, and his exceptions saved. At the May term of chancery court, in 1928, appellee withdrew his answer by leave of the court, the cause being heard upon the demurrer, which was sustained, and the plaintiff excepted. Plaintiff elected to stand on his complaint, and the cause was dismissed for want of equity. Plaintiff excepted to the judgment, and prayed an appeal. (after stating the facts). It is insisted that the circuit court erred in transferring the cause to equity, and likewise that the chancellor erred in not remanding to law, and also in sustaining the demurrer to the complaint. The relief sought was purely legal, an action for damages upon the statute allowing the injured party double damages for violation thereof. Rinehart Gore v. Rowland, 139 Ark. 90, 213 S.W. 17. There was no ground for equitable relief alleged in the complaint nor in the defenses set up in the answer, consisting of specific denials of the allegations contained in the complaint.

The second alleged defense, that the order of the probate court directing the guardian to invest the minor's funds in real estate was null and void, constituted no defense for appellee Brown, if the order was void, the deed conveying the lands from Brown to Nettie M. McCulla was not affected by the invalidity of such order, so far as Brown was concerned, and certainly a deed from her to appellant conveyed the title to the lands, regardless of his infancy and the fact that the deed was not recorded, as was directed should be done. Tiedeman on Real Property, 561; 3 Washburn, Real Property, 591.

The third ground of defense alleged that the minor's guardian had never made a final settlement with the probate court of the estate, and that no suit had been brought against the guardian and her bondsmen to determine their liability, and that the bondsmen should have been made parties to the suit and an accounting had, pleading same as a complete bar to the suit. The liability of Brown, under the facts alleged in the complaint, if he was liable at all, was without regard to any liability of the guardian and her bondsmen. A tort-feasor cannot allege the liability of another as justification for his act nor for the purpose of contribution, each being jointly and severally liable for the tort, plaintiff having the right to join them all in his suit for damages for the injury or to sue them separately. Myers v. Linebarger,134 Ark. 231, 203 S.W. 580; Coats v. Milner, 134 Ark. 311,203 S.W. 701.

The bondsmen would have been liable only, in any event, ex contractu, while the liability of Brown was ex delicto for a tort, and they could not have been held for an accounting to appellee in the same action where appellee was held liable for the tort, and the plaintiff could sue either of the tort-feasors without joining the others, notwithstanding he was entitled to but one satisfaction. C. M. Digest, 1076.

The allegation that the final purchasers of the land were guilty of the same kind of offense charged to Brown did not constitute their action a part of the transaction for which it was alleged he was liable, and could have constituted no defense to the suit against Brown.

It follows that error was committed in transferring the cause to equity and also in not remanding it to the court of law. The chancellor likewise erred in sustaining the demurrer and dismissing the complaint after allowing the answer to be withdrawn. The allegations of the complaint were sufficient to constitute a cause of action under the sections of the statute, and the special demurrers were not well taken.

It appears, however, that, after part of the evidence had been heard, the cause was continued, and the sureties upon the guardian's bond were ordered to be made parties to the action, and summons issued against them, and, the plaintiff refusing to amend his complaint to allege a cause of action against the new parties, the court sustained the demurrer and dismissed the complaint. Plaintiff had the right to select the defendants in this litigation against whom he would proceed, and if the court, at the instance of the party sued, decided that the cause could not be finally determined without joining these other parties, it could not require the plaintiff to proceed against them in any event, even though it held that they should be made parties in order to protect the defendant in any right the court thought him entitled to in the final determination of the cause. The court erred in sustaining the demurrer and dismissing the complaint.

The decree is accordingly reversed, and the cause remanded with directions to remand it to the circuit court for all further proceedings in accordance with law and not inconsistent with this opinion. It is so ordered.