Globe Soap Co. v. Louisville & Nashville Railroad

6 Ohio C.C. (n.s.) 496, 1905 Ohio Misc. LEXIS 263

• Court: Hamilton Circuit Court
• Decided: July 28, 1905
• Status: Published

Opinion

It does not appear by what authority the guardian acted, nor whether she was the guardian of the estate of Charles F. and Paul R. Dickson, nor does it appear that the two persons for whom she acted were disqualified by infancy, imbecility, or otherwise. The petition, therefore, fails to show any authority in'the so-called guardian for the execution of a lease, and in the absence of such authority, her act would be a nullity.

The demurrer was argued however, not upon the ground that the guardian was without authority to act, but that in executing the power conferred upon her by statute she exceeded such power.

Section 6295, Revised Statutes, provides as follows:,

“A guardian of the person and estate or of the estate only, of any minor, may lease the real estate of his ward for any term not exceeding three years, and not extending beyond the minority. ’ ’

The lease in this case was for a period of three years, together with an option for “a further term of two and one-half years, three years, and three years, making in all a renewal of eight and one-half years.”

It will be observed that the wards themselves do not sign -the lease, and the question whether they could ratify an act done under disability, after such disability has been removed, does not arise in this case, and the only question is whether the guardian as such had authority to make a lease for a longer period than three years, or what amounts to the same thing, make a covenant to renew for a term of years after the three year lease expired.

As appears from the briefs of counsel, the authorities are not uniform on the question here presented, but we think it comes within the principle .announced in the case of The Commissioners of Knox County v. Nichols, 14 O. S., 260, the fourth proposition of the syllabus being as follows:

“Where a power created by statute has been fully executed and something not authorized by the statute has been added, but which is clearly distinguishable from the rightful execution, the 'execution of the power is good so far as authorized by the statute, and void only as to the excess.”

In this case, the power to execute a lease for three years has been fully executed, the term having expired on December 31, 1904, but the covenant to renew the lease for a term of years is in excess of the power granted by the statute, and is therefore void.

It is contended, however, that the lease may have'been executed under Section 6296, which permits a guardian “to lease the real estate of his ward for any term not exceeding fifteen ■years whenever the court appointing him shall, on his application, find that such lease would be to the advantage of the ward,” etc., but in order to bring it within this section, the petition should contain the necessary averments showing the requisite conditions and the authority of the court.

Kiilredge <& Wilby and E. L. Gordon, for plaintiff. Ellis G. Kinkead and E. Kenneth Rogers, for defendant.

We are of the opinion that the demurrer should be sustained upon both of the grounds above stated.