CASES

IN THE

SUPREME COURT

OF

KANSAS.

MITCHELL v. KELLY.

[82 Kan. 1, 107 Pac. 782.]

GUARDIAN.—The Duty of a Guardian to Account is primarily to his ward rather than to the court. (By the editor.) (pp. 98, 99.)

GUARDIAN.-When a Guardian Dies the trust does not pass to his executor or administrator. The latter stands toward the wards as any third person having money or property of theirs in his possession. (By the editor.) (p. 99.)

GUARDIAN-Jurisdiction of District or Probate Court.-An action may be maintained in the district court against the administrator of a guardian who converted his ward's money, became insolvent and died, and against the sureties on the guardian's bond, without a previous settlement of the guardian's accounts in the probate court. (p. 99.)

(Syllabi by the court except when stated to be by the editor.)

J. H. Hindman and John T. Little, for the appellant.
I. O. Pickering and H. L. Burgess, for the appellees.

2 BURCH, J. The question in this case relates to the liability of a surety on the bond of a guardian for minor children. The petition charged that a deceased guardian converted money belonging to his wards to his own use, became insolvent, and died without an accounting. The surety on the bond demurred on the ground that a settlement of the guardian's accounts in the probate court is a condition precedent to recovery against him. The demurrer was sustained, and the present guardian, who brought the action, appeals. The statute relating to guardians and wards (Gen. Stats. 1901, secs. 3274-3305) requires that the property of a minor shall be managed by a guardian, who upon due appointment and qualification shall take charge of it for that purpose.

Section 3280 reads as follows: "Guardians appointed to take charge of the property of the minor must give bond, with surety to be approved by the court, in a penalty double the value of the personal estate and of the rents and profits of the real estate of the minor, conditioned for the faithful discharge of their duties as such guardian according to law. They must also take an oath of the same tenor as the condition of the bond."

The bond given in this case was conditioned as follows: "The condition of the above bond is that if Henry A. Taylor, guardian of the estate of Leanna, Richard M. and Edward S. Taylor, minors, shall faithfully discharge his duties as guardian, according to law, account for, pay and deliver all money and property of said estate, and perform all other things touching said guardianship required by law, or the order or decree of any court having jurisdiction, then the above bond to be void, otherwise to remain in full force."

The very situation which this bond was given to meet is presented. The guardian used up the money of his infant wards, is dead, and left no estate from which they may be reimbursed. His sureties must pay, and 3 the enforcement of their liability ought not to be fettered by rules based upon any considerations except those of substance.

The district court possesses both law and equity powers, which may be exercised in the same proceeding. It has general jurisdiction to investigate accounts and to ascertain and declare balances due, and it possesses the common-law powers always exercised by chancery courts to settle guardians' accounts. Its methods and rules of procedure are as well calculated to attain just results as are those of the probate court. A finding of a balance due from the defunct guardian and of facts making the equivalent of a default must precede a judgment holding the surety liable. It is no detriment to the surety that he is a party to the preliminary inquiry and may actively participate in it. There is no statute forbidding the district court to act, and why should it refuse to do so? The only reason offered is that by analogy the procedure usually followed in cases of defaulting executors and administrators should be adopted. The analogy is destroyed by this fact: Administration is a definite proceeding to a definite end-the collection of assets, the payment of debts, and the distribution of the residue. To accomplish this purpose the probate court has full possession of the entire subject matter. All results are to be worked out there, and to invoke the jurisdiction of the district court with reference to the estate's accounts is to interfere with the due and orderly conduct of a pending proceeding. In no sense is this true in cases of guardianship terminated by the death of the guardian. The guardian is a managing agent for his ward, nobody is interested in his

conduct except the ward, and his duty is primarily to account to the ward rather than to the court. This fact is made clear by the omission from the statute of any provision for a final settlement as of the estate of a deceased person. The ward, on reaching his majority, may settle with the guardian as he pleases. When the guardian dies the trust does not pass to his executor or administrator. His personal representative stands toward the ward as any third person having money or property of the ward in his possession. There is nothing like a pending cause before the probate court to be broken into, and no substantial reason is apparent why the new guardian may not bring his action in the district court. The authorities are divided upon this question (21 Cyc. 240), and the court adopts the view which seems to accord best with the statutes and legal policy of this state.

In all other respects the action was well brought. The record shows that the original petition was refiled and then amended by interlineation so that the certificate to the transcript is not impeached. The fact that one of the minors became of age after judgment does not abate the proceeding here. The motion to dismiss is denied and the judgment of the district court is reversed, with direction to overrule the demurrer to the petition.

Where the Guardian of Infant Dies Without Having Rendered Any Account of his guardianship, the probate court which appointed him may require his personal representative to account for the moneys of the ward received by the guardian in his lifetime: Peel v. McCarthy, 38 Minn. 451, 8 Am. Št. Rep. 681.

As to Whether an Action Against Sureties on the Bond of a Guardian can be maintained prior to an accounting against the guardian, see Perkins v. Stimmel, 114 N. Y. 359, 11 Am. St. Rep. 659; Otto v. Van Riper, 164 N. Y. 536, 79 Am. St. Rep. 673; Wallace v. Swepston, 74 Ark. 520, 109 Am. St. Rep. 94; note to Commonwealth v. Stub, 51 Am. Dec. 534.

On the Termination of a Guardianship, Without a Settlement of the guardian's accounts and ascertainment of the amount due from him, in some appropriate manner, an action of assumpsit cannot be invoked by the ward to enforce settlement of the accounts and payment of the amount remaining in the guardian's hands: Mitchell v. Penny, 66 W. Va. 660, 135 Am. St. Rep. 1046.

COOPER v. RHEA.

[82 Kan. 109, 107 Pac. 799.]

JUDGMENT-Vacation at Subsequent Term.-Under the provision (Civ. Code, sec. 568, subd. 3; Gen. Stats. 1901, sec. 5054, subd. 3) that a judgment may be set aside at a subsequent term "for mistake, neglect or omission of the clerk, or irregularity in obtaining" it, a court may vacate a judgment rendered on the pleadings because of a misapprehension as to what allegations they in fact contained. (p. 101.)

CLOUD ON TITLE-Limitation of Action to Remove.-The right to maintain an action to remove a cloud from a title is a continuing one to which the statute of limitation is not applicable. (p. 102.)

MORTGAGE FORECLOSURE-Proof of Mortgagor's Title.In an action brought to foreclose a mortgage, in order to establish a ground of recovery against a defendant who does not claim under its maker, the plaintiff is required to show that the mortgagor had title to the property, so that the mortgage created a lien. (p. 103.) (Syllabi by the court.)

S. M. Hutzel and A. D. Gilkeson, for the appellant.

W. E. Saum, for the appellee.

109 MASON, J. A. B. Cooper began an action upon several coupons more than five years past due, asking the foreclosure of a real estate mortgage given to secure the bond from which they had been clipped. The mortgagors, who are not shown to have otherwise encumbered or conveyed their title, were named as defendants, the petition alleging that they had been absent from the state long enough so that the bar of the statute of limitation had not fallen. They do not appear to have 110 been served, and the plaintiff dismissed the case as to them. John Rhea was made a defendant under the allegation that he claimed an interest in the mortgaged property, but that any right he had therein was inferior to the lien of the plaintiff. He filed an answer alleging, among other matters, that the plaintiff's cause of action had not accrued within five years prior to the commencement of the suit. The plaintiff demurred to this part of the answer. December 17, 1906, the court overruled this demurrer, and, as the plaintiff declined to plead further, gave judgment for Rhea. After the lapse of the term the plaintiff filed a motion to open this judgment, on the ground that he had misunderstood the character of the answer when he elected to stand upon his demurrer. On November 8, 1907, the court sustained the motion and set aside the judgment. Thereafter Rhea filed an amended answer, consisting of a general denial and a plea of the five year statute of limitation. A trial was then had. The plaintiff introduced the coupons. No other evidence was offered by either party. Judgment was rendered

On

for the plaintiff ordering a sale of the property and barring all claims of Rhea, who appeals.

The first question presented is whether the court erred in vacating the original judgment. The plaintiff made affidavit that at the time the judgment was rendered he understood that the parties and the court had agreed that the answer was to be amended so as to set out a tax deed, and that it was to be treated at the hearing on the demurrer as though such amendment had already been made. He also introduced an affidavit of the former judge of the court, who presided when the judgment was rendered, stating that he had understood that to be the situation and had acted upon that understanding. It therefore was shown that the judgment was rendered on the pleadings while the court and the losing party were under a mistaken impression as to what issues they presented. The power of 111 the court to correct such an error, even at a subsequent term, is so essential to the orderly administration of justice that it ought not to be denied unless in virtue of legislation admitting no other reasonable construction. judgment so rendered does not express the real purpose of the court. The situation it presents is analogous to that arising when the record made does not conform to the action really taken. It is as necessary that a speedy remedy should be afforded in the one case as in the other. In many states a mistake of fact is recognized as an independent ground for vacating a judgment after the term has lapsed: 23 Cyc. 931; 15 Ency. of Pl. & Pr. 245. Here authority for such action must be found, if at all, under the provision that a court may vacate or modify its own judgment "for mistake, neglect or omission of the clerk, or irregularity in obtaining" it: Civ. Code, sec. 568, subd. 3; Gen. Stats. 1901, sec. 5054, subd. 3. Assuming that the "mistake" referred to in the language quoted can only be that of the clerk, the word "irregularity" must be given a broad enough meaning to cover a case where the court has acted upon an erroneous understanding of the facts. Such has been the practical construction placed upon it: Small v. Douthitt, 1 Kan. 335; Tobie v. Commissioners of Brown Co., 20 Kan. 14; Murphy v. Swadner, 34 Ohio St. 672.

A specific objection is made to the order opening the judgment on the ground that the plaintiff did not, as required by the statute (Civ. Code, sec. 572; Gen. Stats. 1901, sec. 5058; Schuler v. Fowler, 63 Kan. 98, 64 Pac. 1035), make a showing that he had a valid cause of action. His affidavit set out that he believed he had a complete defense to the answer. Under the circumstances of the case-the real issue being one of law-this must be deemed sufficient.

The defendant maintains that his plea of the statute of limitation was good. He could not, however, take advantage of the fact that the coupons were more than 112 five years.