Voltz v. Voltz

75 Ala. 555

• Court: Supreme Court of Alabama
• Decided: December 15, 1883
• Status: Published

Opinion

STONE, J.

The present bill was filed by the appellee, for the purpose of opening and remaking a settlement he made with Henry E. Yoltz, his guardian. The terms of settlement were agreed on and reduced to writing and signed, when the ward was a little more than eighteen years old. A year afterwards the complainant, by chancery decree, was relieved of the disabilities of minority, and soon afterwards the agreement of the year before was consummated, and Henry E., the guardian, conveyed to James W., the ward, property, real and personal, in full discharge of the former’s liability; and the latter executed a full acquittance and discharge of the former’s indebtedness as guardian. The settlement was made out of court, but the ward’s acquittance was filed in the probate court, and thereupon, without further account, a decree was entered, dis-chargingthe guardian from further liability. The complainant, James W., became twenty-one, February 25, 1878, two years and nine months after the agreement of settlement, and about one year and eight months after the execution of titles and release. James W., the ward, took possession immediately after the agreement of settlement was entered into, remained in possession, and was never heard to complain until shortly before this bill was filed, November 11, 1881. This was more than five years after the interchange of titles, and some three years and eight or nine months after James W. reached his majority. During all this time he retained the possessian and use of the property he acquired- in the settlement.

The property conveyed in payment was probably worth not more than half the sum of the guardian’s indebtedness at that time-; and it is not controverted that if the said James W. had expressed his dissent in a reasonable time, the settlement and discharge would have been set aside.—Bergen v. Udall, 31 Barb. 9 ; Ferguson v. Lowery, 54 Ala. 510; Baines v. Barnes, 64 Ala. 375; Holt v. Agnew, 67 Ala. 360; Humphreys v. Burleson, 72 Ala. 1.

It is contended, however, that there has been too long acquiescence, and too many acts of ratification to allow the settlement to be now overhauled. So, the single inquiry is, has there, or has there not, been a ratification and too long acquiescence in this case, to allow the settlement to be opened.

Contracts of purchase, even of lands, made by infants, are not void. They are only voidable, at the infant’s instance, and when the infant becomes of age, if he, with a knowledge of all the facts, ratifies the contract, he can not be heard to complain afterwards, unless he can show some fraud perpetrated upon him. And, if after attaining to his majority, such infant contractor, being cognizant of all the facts, deal with the property in a manner inconsistent with his right to rescind, or wait an unreasonable time before he asserts his right of rescission, either of these is a constructive ratification, and the.contract will be upheld. This is the rule when the contract has been simply one between an adult and an infant, without any special relations of trust or confidence between them.

When, however, the contract has not only been between an adult and a minor, but, in addition, the parties sustained the relation to each other of trustee and cestui que trust, the courts exercise a narrower scrutiny of the transaction, and exact fuller and clearer proof of fairness before yielding their sanction of such transaction. And even if the relation of trustee and beneficiary has terminated, courts regard with distrust and priona facie disapprobation, all dealings in property, between them, until a sufficient time has elapsed for all presumption of undue influence to have ceased. And there are sound reasons for such a rule.- The trustee stands as a guardian, protector, and, in many cases, the adviser of the cestui que trust. He must bestow the same care, diligence and watchfulness upon the personal and pecuniary interests confided to him, as an ordinarily prudent man bestows on his own similar interests. He is placed there, not in his own, but in another’s interest. He is on watch, not of his own, but of another’s property-rights. He should not, and can not rightfully strike a bargain with his beneficiary, which he would not advise and approve, if proposed by a stranger; and when he attempts to deal with his beneficiary, he is placed in the repugnant, dual attitude of being forced by duty to give his counsel, watchfulness, best judgment and trading capacity to another, against bis own personal, pecuniary interest, if antagonistic. In Dunbar v. Tredennick, 2 Ball & Beatty, 304, a case presenting the question we are considering, the Lord Chancellor said: Such transaction could not be upheld, “ unless [the trustee] could satisfy the court that it was a transaction perfectly fair in all its parts, that it was such a dealing as he would have advised his employer to have entered into with a third person; and that he had given all the advice against himself, that he would against another.”—Huguenin v. Baseley, 14 Ves. 273; s. c. Lead. Ca. in Eq., Vol. 2, Part 2, 556, and notes; McCormick v. Malin, 5 Blackf. 509 ; Lee v. Lee, 67 Ala. 406.

As we have said, the presumption of undue advantage' is much more difficult to overcome, when the relation of trustee and cestui que trust has existed, than when it rests on the simple ground, that one of the contracting parties -was an infant. So, the rule of evidence is much more exacting, when it is sought to show a ratification of such voidable contract. In Thompson v. Lee, 31 Ala. 292, quoting from Dunbar v. Tredennick, supra, it was said: “ To give validity to such confirmation, it must be shown that the party was fully acquainted with his rights; that he knew the transaction to be impeachable which he was about to confirm; and that with this knowledge, and undef no influence, he freely and spontaneously executed the deed.” The same language in substance is employed in the following cases: Murray v. Palmer, 2 Sch. & Lef. 474 ; Fish v. Miller, 1 Hoffm. Ch. 267; Butler v. Haskell, 4 Desa. 651, 716; McCants v. Bee, 1 McCord’s Ch. 383 ; Boyd v. Hawkins, 2 Dev. Eq. 195, 215. In Cumberland Coal & Iron Co. v. Sherman, 20 Md. 117, 134, is this language: “ The cestui que trust must not only have been acquainted with the facts, but apprised of the law, how those facts will be dealt with, if brought before a court of equity.” Of similar import is Hoffman Steam Coad Co. v. Cumberland Coal & Iron Co., 16 Md. 456, 468 ; Pairo v. Vickery, 37 Md. 467.

In Pomeroy’s recent and excellent treatise on Equity Jurisprudence is this language: “ Where an ignorance or misapprehension of the law, even without any positive, incorrect, or misleading words or incidental acts, occurs in a transaction concerning the trust, between two parties holding close relations of trust and confidence, injuriously affecting the one who reposes the confidence, equity will, in general, relieve the one who has thus been injured. The relations of trustee and cestui que trust, quardian and ward, and the like,- are examples. The relief is here based upon the close confidence reposed ; upon th^duty of the trustee to act in the most perfect good faith, to consult the, interests of the beneficiary, not to mislead him, and not even to suffer him to be misled, when such a result can be prevented by reasonable diligence and prudence.” — Mol. 2, § 848.

It may seem to be going an extreme length, when it is asserted that to render a ratification binding in such case, the party to be affected must be “ apprised of the law.” It is difficult, however, to discriminate between “ knowing a transaction to be impeachable,” and being “apprised of the law,” which alone determines when and how it is impeachable.

In the settlement made between Henry E. Yoltz, the guardian, and James W. Yoltz, the ward, the payment was made in personal property, in value probably less than one thousand dollars, and in a tract of two hundred acres of land. In fixing the value of the land, the witnesses vary from eighteen hundred to fifty-five hundred dollars. We feel we are in safe bounds, when we affirm that the lands, improved as they were, were not worth exceeding thirty-five hundred dollars. Aggregated, these sums are less than half the indebtedness, of which they were given and accepted as payment. The lands so conveyed were the statutory separate estate of Mrs. Yoltz, the wife of ITenry E. Yoltz; but James W. Yoltz knew that.fact when he accepted the conveyance. It is contended for appellant that the conclusive presumption, that all men know the law, applies in this case, and 'that, therefore, it must be conclusively presumed that James W. Yoltz knew, from the beginning, that the deed he obtained to the lands, being a conveyance of the wife’s statutory separate estate in payment of her husband’s debt, vested no title in him.—Lee v. Tannenbaum, 62 Ala. 501; Prince v. Prince, 67 Ala. 565.

The deed from Henry E. Yoltz and wife to James W. Yoltz, given in settlement in June, 1876, contains full covenants of warranty. It conveyed absolutely no title, for they were incapable of conveying a title, on such consideration. The consequence is, that the covenant was broken as soon as it was entered into. Henry E. Yoltz having conveyed his property away, and being probably insolvent, it might present a grave question whether James W. Yoltz is not entitled to relief, even if there were no question of infancy, or confidential relation in this cause. Rut we do -not decide this question.

In all the stages of this case — the agreement to settle, the relief of the minor’s disabilities, the execution of titles after they were relieved, — James W. Yoltz was without independent legal counsel; and he was not advised by his guardian to consult such counsel. As matter of fact, he did not know his title to the land was bad, until a few days before he filed this bill. He had pledged his honor he would abide bv the settlement?he had ratified it after he was relieved of the disabilities of minority, and we are forced to the conclusion he did not “ know the transaction was impeachable,” until so informed by counsel of his own selection. After this, there was no delay in asserting his rights. This is a complete answer to the objection of staleness, or undue delay, under all the authorities.—Greenlees v. Greenlees, 62 Ala. 330 ; Jackson v. Harris, 66 Ala. 565. In the matter of want of knowledge that the title acquired was worthless, this case appears to be distinguishable from Kern v. Burnham, 28 Ala. 428.

The bill, as originally framed, contained no offer to surrender up the deed to be cancelled, to account for the property received, or otherwise to do equity. On April 11th, 1882, there was a demurrer interposed, assigning this omission among other grounds. On the 27th October, 1882, the bill, by leave of the court, was amended, by adding to one of the sections the words, “ And complainant hereby offers to do in the premises whatever the court shall direct.” There was no demurrer filed to this. If there had been a demurrer to the bill as amended, it is scarcely sufficient.—Br. Bank v. Strother, 15 Ala. 54; Rogers v. Torbut, 58 Ala. 523; Eslava v. Crampton, 61 Ala. 507; Security Loan Association v. Lake, 69 Ala. 456 ; Eureka Company v. Edwards, 71 Ala. 248. But the defect was clearly amendable — did not go to the substantial merits of the case—and could be reached only by demurrer. Hooper v. S. & M. R. R. Co., 69 Ala. 529 ; Jones v. Latham, 70 Ala. 164; 1 Brick. Dig. 778, § 63. This amendment, although, perhaps, too general for accurate pleading, was, nevertheless, an attempt to heal the defect objected to. Oan the demurrer previously filed be visited on the amendment subsequently allowed ? To so hold, it would seem, would be to give to the demurrant a great advantage. By resting on his first demurrer, he would invoke no direct adjudication on the sufficiency of the amendment; and if it should turn out that the amendment did not completely obviate the objections raised by the demurrer, a reversal in this court would follow, attended by remandment, amendment in the court below, and a re-trial of the cause, after much delay and expense. We are speaking, of course, of defects in pleading, which do not go to the substantial equity of the bill, but are always amendable at any time before final decree. If the bill be substantially wanting in equity, different rules should prevail. On this question, it is not perceived that any difference should obtain in the practice in equity, and in common-law courts. In the latter, if there is an amendment after demurrer to the count or complaint, the sufficiency of the amended pleading is not raised, without a new demurrer, or a re-filing of the former one to the new state of the pleading, if deemed sufficiently ■ specific. - In other words,■the demurrant must show by the record that he has formally invoked the judgment of the court upon the sufficiency of the amendment — whether it has corrected the defect pointed out and relied on by the original demurrer. There is nothing in this record which shows this course has been pursued. There is neither hardship nor inconvenience in requiring this practice to be pursued. See Moore v. Armstrong, 9 Por. 697; 1 Dan. Ch. Pr. (5th Ed.) 582.

In Gaillard v. Duke, 57 Ala. 619, there was a contestation whether the administrator, who was one of the distributees, had received money, and how much, by way of advancement. There was demurrer to the allegations, assigning several grounds — one objection being, that they were not sworn to. The court sustained the demurrer as to the other objections, but overruled it as to the want of affidavit. Amended allegations were then filed, conforming to the rulings on demurrer, but without affidavit. There was no new demurrer to the amended allegations. This court said : “ If it was the purpose of the appellant to insist that the’amended allegations were defective because not sworn to, he should have demurred to them also for that reason. The contention can not be made upon the former pleading, which has become functus officio.”

After the present suit was commenced, an attempt was made to heal the imperfection in the title made by Henry E. Yoltz and wife. A chancery decree was obtained, relieving her of the disabilities of coverture, under section 2731 of the Code of 1876. .The petition for the purpose failed to aver that she owned any separate estate, and hence, failed to show jurisdiction in the court.—Cohen v. Wollner, Hirscherg & Co.,72 Ala. 233. Her later deed tendered was imperfect and inoperative, like the first.

It is contended for appellant that, when the deed from Henry E. Yoltz and wife was executed to James W. Yoltz, the former verbally agreed with his wife to convey to her another place, called the River place instead of the Chestnut place — the place in controversy — and that, carrying out that agreement, he did convey to her the said River place, before this bill was filed. It is further contended that the River place is of greater value than the Chesnut place ; and the exchange being beneficial to the wife, chancery would approve it, and confirm the trade.

Conceding' this to be true, it must and will be conceded that, as matters now stand, James W. Yoltz has not a good title; and he is not bound to accept that which requires litigation with its delay, expense and uncertainties, to secure to him an indefeasible title.—Walton v. Bonham, 24 Ala. 513. Besides, the conveyance of the River place, made as it was just before this suit was brought, derives no strength or ■ support from the oral promise previously given.—Hubbard v. Allen, 59 Ala. 283. Much difficulty and uncertainty might arise, if the conveyance of the River place should be assailed, as being in excess of what Henry E. Yoltz owed his wife. There is not enough in this record to make it absolutely certain that James W. Yoltz can acquire a perfectly good title to the Chesnut place, even at the end of a suit.

Other questions have been urged on our consideration. By the ■ decree of the chancellor, the settlement of Henry E. Yoltz with his ward, James W. Yoltz, agreed upon in May, 1875, and consummated by conveyance of the land made in 1876 by Henry E. Yoltz and wife, and the release and acquittance executed by James W. Yoltz, were “set aside, vacated and annulled.” The decree, however, did not require James W. Yoltz to surrender back the possession of the lands, nor to deliver up the deed to be cancelled. It is contended the decree was erroneous, because it failed to make this further order.

It is further objected that, in giving instructions to the register, the chancellor did not go far enough. On the 23rd February, 1873, Henry E. Yoltz had made an annual settlement with his' ward, by which there was ascertained and decreed to be due the latter the sum of $9173.76. The register was instructed, in stating the account against the guardian, to charge him with this decreed sum, and interest thereon ; and to allow him as credits such amounts as might be shown to have been properly expended for the ward, between the time that annual settlement was made, and the settlement agreed on between Henry E. and James W. Yoltz. It is not controverted that the settlement of February 23rd, 1873, is prima facie correct, and stands as an adjudication between the parties, unless contested according to the statute. — Code of 1876, §§ 2531,'2594. The objection is, that, in giving this direction, the chancellor failed to provide for the re-examination of any item included in previous settlements.

It is further objected that, in giving instructions to the register in the matter of taking the account, the chancellor omitted to charge James W. Yoltz with rents of the lands while in'iiis. possession.

Notwithstanding the decree in this cause did not finally determine all the details of relief, it was nevertheless a final decree, in that sense which will'support an appeal. “The test of a final decree, so as to support an appeal, is not whether the cause is still in progress in the court of chancery, awaiting further proceedings which may be necessary to entitle the parties to the full possession and enjoyment of the rights it has been declared they have, but whether a decree' has been rendered, settling these rights.”—Jones v. Wilson, 54 Ala. 50, and authorities cited. A decree may be partly final, and partly interlocutory.—Malone v. Marriott, 64 Ala. 486. And we may add, it is rarely the case that a chancery decree, even though final in its character so as.to support an appeal, settles all the questions necessary to render complete relief. This is almost universally •so, when the bill is one for redemption; or, for any other cause, an account has to be taken before the final orders ■can be made. As was said in Cochran v. Miller, 74 Ala. 50, “ If it [the decree] settle all the equities between the parties, it is, to that extent, final'. If it is necessary to take an account, •or other proceeding must be had to carry it into effect, to this last named extent it is interlocutory, and may be moulded, modified or altered by the chancellor, as any other interlocutory decree may be. The principles of relief can not be altered, for they are final. Directions for carrying the decree into •effect may be altered, for they are interlocutory.” The decree rendered was final, and justified the appeal taken. If it had not been final, the appeal would not have lain. It settled and ■declared that the settlement between TIenry E. and James W. Yoltz, agreed on in May, 1875, and consummated in June, 1876, “ be set aside, vacated and annulled,” and that another .and final settlement be made between the guardian and ward. We say this settled the equities, because all else was mere details in settling the account, and carrying the decree into effect. As to such details, if the chancellor gave directions which were not full enough, or even erroneous, these being.interlocutory, he could afterwards modify them on motion of either party. If some orders necessary to a full and complete execution of the decree were omitted, he could supply them afterwards.—Cochran v. Miller, supra.

Applying these principles to this case. It is necessary to a ■complete determination of this cause, that the deed from Henry E. Yoltz and wife to James W. Yoltz be surrendered up and cancelled, under the direction of the court, and that the possession of the premises be surrendered back to the grantors. It is not necessary, however, that this order should have been made in the first instance. The condition of crops planted and growing should be taken into the account, and the final order should be made, when it can be done with as little damage to the parties as possible. — Code of 1876, §§ 2949, 2950. The ■chancellor has much better means of determining this question advisedly than we can have. This pertains to the execution of the decree, and not to the equity of the bill.

So, in the matter of taking the account. If either party desires to go behind the decree of 1873 on partial settlement, this is a question of fuller instructions to the register, which either party is entitled to, on petition or motion therefor. And James W. Yoltz is liable for rents of the land while in his possession,, with interest from the end of each year, subject to discount for taxes paid, and for permanent improvements, if any remain which were placed thereby him. — Code of 1876, §§ 2951 et seep But this fund being income and profit of Mrs. Yoltz’ statutory separate estate, a difficulty arises in the matter of its administration. The statute declares that all the property of the wife is her separate estate, not subject to the payment-of the debts of the husband ; that it vests in the husband as her trustee,, who has the right to manage and control the same, and is not required to account with the wife, her heirs or legal representatives, for the rents, income and profits thereof; but such rents, income and profits are not subject to the payment of the-debts of the husband. — Code of 1876, §§ 2705-6.

We have many times had occasion' to consider the power of the husband over the wife’s property, and its income and profits. In Lee v. Tannenbaum, 62 Ala. 501, we said : “ The right and title to property thus situated is secured to the wife, yet without power in her to charge it, save to a limited extent that the husband has neither right nor title to the property, yet, as trustee, may manage and control it, and invest its proceeds, when in money, or converted into money ; that the rents, income and profits pass to him as trustee, but there is no mode provided for making him account for them ; and yet they are not liable to his debts. True, the rents, income and profits are committed to him in confidence that he will employ them in support and maintenance of the family ; but this is only a moral or imperfect duty. Tts performance can not be compelled, though he might be removed from the trust for a clear disregard of this obligation.” The law can not coerce the payment of the husband’s debts, either out of the corpus, or the income and profits of the wife’s statutory estate, save to the extent, and in the manner provided in section 2711 of the Code. Yet, if the husband dispose of the wife’s property illegally, and she sue to recover it back, she can not recover the income and profits, because her husband is entitled to the possession and administration of them ; and he, by disposing of the property, has parted with all the possessory right and interest he had, and estopped himself from recovering back that which he bargained away.—Whitman v. Abernathy, 33 Ala. 160 ; Ryall v. Prince, 71 Ala. 66 ; Chapman v. Abrahams, 61 Ala. 108.

According to the principles above declared, neither Henry E. Yoltz nor his wife can recover the rents, by any active measure of relief. He is estopped, because, having parted with the land in payment of a debt standing against him, and by a conveyance binding on him, he can not be heard to say James W.’s possession was tortious ■ or illegal. Nor can the wife recover, because her only authority would arise as an incident to the recovery of the land itself; and then, the recovery, so far as rents and profits are concerned, would be for the use of her husband, as her trustee. He having estopped himself, she can not recover in his right.—Whitman v. Abernathy, supra; Daffron v. Crump, 69 Ala. 77.

The rents-in the present case must be treated as if they had been realized, and then paid by Henry E. Yoltz, to James W. in part liquidation of the indebtedness of the former. It is a good paymentpro tanto ; it can not be recovered back from him, and he must be charged with it in the account. Erom the sum of these must be deducted any taxes he may have paid, and the present value of any valuable, permanent improvements he may have put on the land.

None of these questions enter into the final decree proper. They pertain to the execution of the reference, and aré interlocutory in their character. They can not become the subject of assigned error, until the account is taken, and finally decreed on. Neither of the three objections urged is now in a condition to be the ground of a reversal.—Cochran v. Miller, supra.

The decree of the chancellor is affirmed.

BrioKIcll, O. J., dissenting.