Smith v. Wiley

21 Ind. 224

• Court: Indiana Supreme Court
• Decided: November 15, 1863
• Status: Published

Opinion

Hanna, J.

The appellants were, in 1834, the wards of Wiley, who was their guardian, and as such applied, in November of that year, to the proper Court, for leave to'sell the real estate of his said wards, that the proceeds might be vested in other lands. It is averred that the Court ordered the sale of said lands, and appointed one Kelso a commissioner to make said sale; that he sold, without giving notice to said guardian, and in 1836 reported said sale, and that he had paid the amount of money and notes to said guardian; and that the sale was not confirmed, nor any one appointed to make a deed; but that in 1839 a deed reported by said Kelso, who assumed, without any authority, to make the same, was approved by the Court; that said land was appraised at 1,000 dollars and sold for 700 dollars; that said Wiley went into and is yet in possession; that said plaintiffs, then being infants, soon after he was appointed guardian, removed to and yet reside in Illinois; that he has never settled his trust as guardian, nor vested said funds in other lands; that he induced persons to not bid upon.said lands; thahsaid fact and the fact of the manner in which he was to vest the funds derived from the sale of said lands were not known to said plaintiffs, but were concealed from them till the 4th of July, 1858. This suit was commenced in about three months thereafter.

John Dumont, for the appellants.

A demurrer was sustained to the complaint on the ground that the suit was barred by the statute of limitations.

The decision was clearly wrong, as the statute expressly excepts non-residents from its operation. 2 G. & H. p. 161. The complaint shows the plaintiffs were non-residents. This being the case, it is not necessary to discuss other questions raised, as to concealment and fraud, and the time of this discovery,” &c.

Per Curiam. — The judgment is reversed, with costs. Cause remanded.