Chapman v. Chapman

32 Ala. 106

Opinion

STONE, J.

In Chilton v. Cabiness, 14 Ala. 449-50, and in Vincent v. Rogers, at the January term, 1857, a principle was asserted, which must be regarded as decisive of this case on its main point. — See those cases, and the authorities therein cited; also, Kavanaugh v. Thompson, 16 Ala. 819.

We think that both principle and authority forbid that an action at law should be maintained by a ward against his guardian, for the use, income or profits of the property of the ward, which went into the possession of the guardian by virtue of his appointment as such, unless there has been a settlement of the accounts, and a balance struck. — 1 Chitty’s Pl. 38, 69; Lewin on Trusts and Trustees, 631; Brown on Actions at Law, 275; ib. 555; Broome on Partios to Actions, 2,109; 2 Story’s Equity, 1041.

We have found no authority, justifying a recovery, at law, in a case like the present. We think such a precedent would lead to most embarrassing results.

[2.] Under the principle above asserted, it is manifest the plaintiff never can recover in this action. We therefore decline to consider any other question. — Turcott v. Hall, 8 Ala. 522; Fant v. Cathcart, ib. 725; Smith v. Houston, ib. 726.

The judgment of the circuit court is affirmed.

Wadker, L, not sitting.