In Re Simmons

123 S.E.2d 614 (1962) 256 N.C. 184

In re Clarence M. SIMMONS By S. B. Frink, Guardian.

No. 600.

Supreme Court of North Carolina.

January 12, 1962.

A. H. Gainey, Jr., James C. Bowman, Southport, Fletcher, Lake & Boyce, Raleigh, for movant appellee.

S. Bunn Frink, Southport, and Isaac C. Wright, Wilmington, for respondent appellants.

RODMAN, Justice.

Appellants propound seven questions, each of which they say must be answered in the affirmative to sustain the judgment.

The first is: Was Hewett's appointment as guardian invalid? They contend the record establishes the inquisition in lunacy was a nullity because notice of hearing was not served on the alleged incompetent until 4 p. m. and the hearing was had at 4:30 p. m. on the same date. This short interval of time deprived Johnson of an opportunity to prepare his defense and establish his mental competency, and because of this lack of time in which to prepare a defense, the adjudication with respect to his mental competency was a nullity. True the record shows that notice was served on Johnson at 4 p. m., and the time set for the hearing was 4:30 p. m.; but it also shows that Johnson was present at the hearing and examined by the jury. There is nothing to suggest that he requested a delay for the purpose of establishing his mental capacity. His failure to request a continuance when he had the opportunity to do so was a waiver of his right. Collins v. North Carolina State Highiway Comm., 237 N.C. 277, 74 S.E.2d 709.

Although adjudged incompetent on 12 September 1960, the date on which Hewett was appointed as guardian, the record contains no suggestion that Johnson has ever since that date complained of the manner in which the hearing was had with respect to his mental condition. The proceeding was regular on its face. Appellants cannot collaterally attack Hewett's appointment. Arrington v. Short, 10 N.C. 71; Bethea v. McLennon, 23 N.C. 523; In re Propst, 144 N.C. 562, 57 S.E. 342; Anno. 23 A.L.R. 606; 25 Am.Jur. 35; 39 C.J.S. Guardian and Ward § 38, p. 59.

The court found Johnson lacking in mental capacity to transact business, a condition existing prior to March 1942 and continuing until the hearing in 1961. The finding is supported by the evidence. Based on that finding, appellants should not now be permitted to challenge Hewett's effort to preserve for the incompetent his estate. Moore v. Lewis, 250 N.C. 77, 108 S.E.2d 26; Smith v. Smith, 106 N.C. 498, 11 S.E. 188.

The next five questions propounded may be merged and reduced to this question: Do the facts alleged and found suffice to support the judgment vacating the order of sale? The answer is yes.

It is alleged and found that Johnson reached his majority prior to March 1942. Frink was appointed as guardian in November 1937 because Johnson was then a minor. The evidence is sufficient to support these allegations and findings. There is no evidence to the contrary. Frink testified he did not recall having ever seen movant prior to July 1961 and did not know how old he was in 1942.

When one is appointed as guardian for a minor, his right to act terminates when the ward reaches his majority. Melton v. McKesson, 35 N.C. 475; Adams v. Adams, 212 N.C. 337, 193 S.E. 661; 39 C. J.S. Guardian and Ward § 42, p. 62; 25 Am. Jur. 37.

Coon et al. v. Cook, 6 Ind. 268, bears a remarkable factual similarity to this case. There the court, in 1839, appointed one Hiatt guardian for Nancy Coon, a minor 18 years of age. She reached her majority in November 1842. She was then insane. After she reached her majority, her guardian obtained an order authorizing a sale of her property. The Supreme Court of Indiana said: "When Hiatt was appointed, his ward was just eighteen years old. At that time, she does not appear to have been represented as insane. The order of the Probate Court is very explicit. It reads thus: `Ordered, that David Hiatt be and he is hereby appointed guardian of Nancy Coon, infant, and minor heir of John Coon, deceased.' This appointment, of course, ceased to exist when her minority ceased; and that event occurred on the 16th of November, 1842. In point of fact, she was then insane; but that circumstance could not prevent her arrival at full age. There is no legitimate rule of construction that would extend the force of the above order of appointment beyond the last-named period, except so far as a settlement of the trust might require."

Frink as guardian was, in 1942, functus officio, totally lacking in authority to seek court authority for a sale of movant's property. Because of such want of authority to act for movant, the court acted improperly in authorizing the sale.

The power of a court to act on an unauthorized appearance was fully and carefully considered in Howard v. Boyce, 254 N.C. 255, 118 S.E.2d 897. There Moore, J., reviewed at length prior decisions of this Court. No good purpose could be served by another review of the authorities. No plausible reason has been advanced why we would reverse the conclusion then reached that a court cannot authorize a sale or other disposition of one's properties upon application of one who has no authority to request the disposition, and when want of authority appears on the face of the record, the judgment is void; but when lack of authority does not appear on the face of the record, a motion in the cause is the proper procedure to obtain relief.

Not only was the court warranted in vacating the order of sale because Frink was, at the time he filed the petition, without authority to act; but if then the duly authorized guardian, the facts stated in Finding XXI were of themselves sufficient to support the judgment.

A guardian must in fact act for his ward. Here it is established Frink was not acting for his ward but "acted for and relied upon an attorney, now deceased, in preparation of the proceeding." (Emphasis added.) For whom was this other attorney acting? Why should he seek a sale of the property for less than a dime per acre? The law to be applied to these facts has been declared in many cases. The application is illustrated in White v. Osborne, 251 N.C. 56, 110 S.E.2d 449; Hall v. Shippers Express, 234 N.C. 38, 65 S.E.2d 333; Butler v. Winston, 223 N.C. 421, 27 S.E.2d 124; Cobb v. Fountain, 187 N.C. 335, 121 S.E. 614; Hughes v. Pritchard, 153 N.C. 135, 69 S.E. 3; Moore v. Gidney, 75 N.C. 34.

The final question propounded by appellants is stated thus: "Are affidavits admissible instead of witnesses being examined subject to cross-examination?" While the brief does not specify the affidavits claimed to be incompetent, we assume the question is directed to four affidavits stating the opinion of affiants that movant was incompetent and had been incompetent since birth. No argument is advanced in support of the question propounded. The affidavits supplement plenary parol testimony to the same effect given by witnesses cross-examined at length by appellants. Conceding but not deciding that these affidavits ought to have been excluded, appellants' assignment of error does not warrant another hearing. As said by Parker, J., in quoting from Annotated Cases 1917C, p. 660; "The general rule deducible from the cases appears to be that where a case has been tried before the court without a jury the admission of incompetent evidence is ordinarily deemed to have been harmless unless it affirmatively appears that the action of the court was influenced thereby. In other words it is presumed that incompetent evidence was disregarded by the court in making up its decision." Mercer v. Mercer, 253 N.C. 164, 116 S.E.2d 443.

In evaluating the challenged evidence, it must be remembered that the prime purpose in offering this evidence was to repel the assertion that if wrong had been done, it was so venerable because of age as to render it immune to attack.

Respondents do not argue that the $15 which Peterson was to have paid for the 240 acres or movant's interest therein was in fact a fair consideration, nor do the other movants assert they are in better position in that respect than Peterson. The order entered in 1942 authorizing the sale became void when vacated because entered on motion of one without authority to act for the owner.

Affirmed.