Brown v. Gibson ( 1948 )

1. The father, if alive, is the natural guardian of his minor child, and, on giving bond acceptable to the ordinary, is authorized to represent his estate.

2. On application by a guardian for leave to sell land for a purpose other than reinvestment, the appointment of a guardian ad litem is not required.

3. The court of ordinary being a court of general jurisdiction, its judgments may not be collaterally attacked for defects not apparent on the face of the record.

4. An order authorizing a guardian to sell the property of his ward is a judgment of the court of ordinary that such sale is necessary for the purpose stated in the application.

No. 16010. JANUARY 9, 1948. Claudius Loam Brown died intestate August 2, 1939. On July 27, 1946, W. L. Brown, and four others, as his sole surviving heirs at law, brought a suit against Sandy Gibson, of Dooly County; Real Estate Loan Company, of Fulton County; and Atlantic Life Insurance Company, of Richmond, Virginia, to recover a described tract of land in Dooly County and mesne profits. After being three times amended, the petition in substance alleged that the defendants were holding the land sued for under a chain of title founded upon a void deed, dated November 5, 1912, from L. V. Brown as guardian of Claudius Loam Brown to Mrs. Susanna M. Brown. Respecting the contention that the defendants' title was based on a void guardian's deed, the petition as amended, with its exhibits, charged: L. V. Brown, as the father of Claudius Loam Brown, a minor, under 14, who was also an imbecile, filed a petition in Dooly County Court of Ordinary on September 29, 1911, praying that he be appointed guardian of the person and property of his minor son. On the same day, without any finding by a commission of his mental condition, an order was granted making the appointment, and at the same time he qualified as guardian by taking oath, giving bond, which the ordinary approved, and receiving letters of guardianship; all of which, as alleged, was done in vacation. On September 2, 1912, a petition was filed in the court of ordinary by the guardian for leave to sell the property in controversy, which his ward had received by gift from Mrs. Mary S. King, an aunt, for the purpose of discharging a lien against it and for the maintenance and support of his ward. In that petition it was alleged that Mrs. King, prior to her gift of the land to the petitioner's ward, had conveyed it as security for a loan of $850, which was then unpaid and would mature in about a year from that date; and that his ward had no money or other property to pay it, was helpless, would remain so, was expensive to keep, and the petitioner had no income from which he could be supported. It was not alleged that the petitioner as the father of his minor ward was not personally able to provide for his necessities. On presentation of the petition, the ordinary granted an order directing that citation issue and be published as required by law in such cases, but no notice was published in compliance therewith, and no guardian ad litem was appointed. On October 7, 1912, an order was granted by the ordinary authorizing the guardian to sell the land in dispute for the purposes stated in the application. The order recited: "It appearing that notice of the same has been published as required by law, and that it is necessary for the maintenance and support of said ward that said lands be sold, and no objections being made thereto, it is ordered by the court that said L. V. Brown, guardian for said Claudius Loam Brown, be, and he is hereby granted leave and is empowered to sell said lands for the purposes aforesaid." On November 5, 1912, for a consideration of $4865, L. V. Brown as guardian of Claudius Loam Brown, conveyed the property in dispute to Mrs. Susanna M. Brown by deed, which recited his authority to sell and compliance by him with all of the requirements of a guardian's public sale.

The court sustained a general demurrer, which had been renewed to the petition as amended, but did not pass upon the several grounds of special demurrer. The exception here is to the order sustaining the general demurrer and dismissing the case. 1. There is no merit in the contention that the deed from L. V. Brown as guardian of Claudius Loam Brown, an imbecile minor son, is void because he was not legally appointed. The relation of guardian and ward exists by operation of law between a father, if alive, and his minor child. Code, § 49-102. And the fact that the minor may be an imbecile presents no exception to this rule. Since the relation of guardian and ward is created by operation of law between a father and his minor child, upon the ordinary's approval of a bond filed by such natural guardian he becomes fully authorized to represent the estate of his ward, and the bond may be made in vacation. § 49-114. In this case it appears that the father, on September 29, 1911, filed in the court of ordinary a petition asking that he be appointed guardian of his minor son. On the same day the prayer of his petition was granted; he took oath; filed a bond in an amount and with security which the ordinary approved; and received letters of guardianship. In these circumstances, since the filing of a guardian's bond acceptable to the ordinary was all that the law required, he legally qualified as natural guardian, and having done so was fully authorized to represent the estate of his minor son in that capacity.

2. When the petition for leave to sell the land in controversy was filed in 1912, no guardian ad litem was appointed, and the plaintiffs insist that the guardian's deed is void for that reason. We do not agree with them in their view of the law. By the record it appears that the sale here in question was for purposes other than reinvestment, and section 49-205 of the Code provides that sales of any portion of the ward's property thereunder shall be made under direction of the ordinary, and under the same rules and restrictions as are prescribed for sales by administrators. The Code, § 113-1706, declares, in substance, that before any administrator shall be allowed to sell property of the intestate, he must make application to the ordinary for leave to sell, notice of which application shall be published once a week for four weeks in the gazette in which the county advertisements are published; and if no objection is filed, and the ordinary is satisfied of the truth of the allegations in the petition, an order shall be passed granting the leave to sell, specifying therein the lands as definitely as possible. The publication of this notice of the application is the only notice required by our statute to be given to the heirs at law in cases of sales by administrators, or to wards in cases of sales by guardians, except where the sale is being made by guardian for the purpose of reinvestment. In Prine v. Mapp, 80 Ga. 137,143 (5 S.E. 66), this court, in 1887, held that the appointment of a guardian ad litem was unnecessary in all cases where a guardian applied for leave to sell land belonging to his ward. When that case was decided the law of this State required guardians to make all applications for leave to sell to the ordinary; but since then the act of 1889 (Ga. L. 1888-89, p. 156) has been passed by the legislature, requiring guardians to apply to the judges of the superior courts for leave to sell land for reinvestment, and the amending act of 1890 (Ga. L. 1890-91, p. 229) provides for the appointment of a guardian ad litem in such cases. With this exception the law has not been otherwise changed since the Prine case as it relates to the necessity for appointing a guardian ad litem where an application is made by a guardian to sell the land of his ward.

3. It is charged in the petition that the order of October 7, 1912, authorizing the guardian to sell, is void because notice of the application was not published for the four weeks immediately preceding its date in the gazette in which the county advertisements were published. In effect we are asked to vacate and set aside a judgment of a court of general jurisdiction rendered some thirty-five years ago. From the record it affirmatively appears that an order was granted when the application for leave to sell was filed, directing that citation issue and be published as required by law, and in the order granting leave to sell it is recited that such was done. Nothing to the contrary appears upon the face of that proceeding, and this court will presume that the ordinary complied with the law.Ryals v. Wilson, 152 Ga. 757 (111 S.E. 414). The court of ordinary being one of general jurisdiction, its judgments are not subject to collateral attack such as the plaintiffs here make.Maybin v. Knighton, 67 Ga. 103; Fussell v. Dennard,118 Ga. 270 (45 S.E. 247); Jones v. Smith, 120 Ga. 642 (48 S.E. 134); Sharpe v. Hodges, 121 Ga. 798 (49 S.E. 775);Medlin v. Downing Lumber Co., 128 Ga. 115 (57 S.E. 232);Neal v. Boykin, 129 Ga. 676 (59 S.E. 912, 121 Am. St. R. 237); Sturtevant v. Robinson, 133 Ga. 564 (66 S.E. 890).

4. It is insisted that the order granting leave to sell is void because the guardianship proceedings affirmatively show that the relation of father and minor child existed between the parties, and there was no allegation in the petition for leave to sell that the father was unable to supply him with the necessities of life. The record does not show and there is no way for us to know what evidence the ordinary heard when he passed upon the application for leave to sell. We find nothing in the record which negatives the allegation that a sale was necessary for the purposes therein stated. The order to sell, being a judgment of a court of competent jurisdiction, imports legally a necessity for the sale, and such judgment can not be attacked and set aside, collaterally. It is not only leave to sell, but it is a judgment of the court that such sale was necessary. Copelan v.Kimbrough, 149 Ga. 683 (102 S.E. 162); 15 R. C. L. 879. The ordinary was authorized to order the sale if the circumstances of the ward required it, and we will presume that he did his duty. "The presumptions in favor of the regularity of a judgment increase with the lapse of years. It has been said that almost any reasonable presumption of fact will be conclusively indulged in order to sustain rights asserted under a decree which is twenty years old. To sustain an ancient judgment, time may authorize the presumption of an extraneous fact which the record does not contradict, and which it was not indispensable to the validity of the judgment that the record should exhibit."Copelan v. Kimbrough, supra.

For the reasons above stated, we hold that the trial judge did not err in sustaining a general demurrer and dismissing the plaintiffs' case.

Judgment affirmed. All the Justices concur, except Duckworth,P. J., absent on account of illness, and Wyatt, J., who took nopart in the consideration or decision of this case.