Arrowsmith v. Gleason

This suit involves the title to certain lands inherited by the plaintiff, and sold some years ago by his statutory guardian, the defendant Gleason, under authority conferred by proceedings instituted by him in the probate court of Defiance county, in the state of Ohio. The plaintiff attacks the order of sale as invalid, prays that the deeds executed to the purchaser be declared void, that an accounting in respect to rents and profits be had, and that such other relief be granted as may be proper. The court below sustained demurrers to the bill, and dismissed the suit. We are therefore to inquire, upon this appeal, whether the bill discloses a cause of action entitling the appellant to relief in a court of equity.

The case made by the bill is substantially as follows: The lands in controversy formerly belonged to John C. Arrowsmith, who died in 1869; his wife, and the plaintiff, his only child and heir-at-law, surviving him. On the 15th of July, 1869, Gleason petitioned said probate court to be appointed guardian of the estate of the plaintiff, then but six years of age. He applied to one Henry Hardy, a freeholder, to become surety upon his bond as guardian, in the penalty of $5,000, which Hardy did, upon the express agreement that before the bond was delivered Gleason would procure another surety of equal responsibility. Gleason filed the bond in the probate court, without obtaining the signature of an additional surety. The bond contained no condition except that if Gleason 'shall faithfully discharge all his duties as guardian, then the above obligation is to be void; otherwise to remain in full force.' Upon its being filed, an order was made appointing Gleason guardian of the plaintiff's estate, and letters of guardianship were issued to him. On the 22d of July, 1869, Gleason filed a petition in the probate court of Defiance county, representing that no personal estate of the ward had ever come to his possession or knowledge, and that there was no such estate dependent upon the settlement of the father's estate, or upon the execution of any trust. That his ward was the owner of the fee-simple of certain tracts of lands in Deflance county,-one being section 36 in that county, containing 640 acres, less a small strip containing 6.25 acres, used and occupied by the Wabash, St. Louis & Pacific Railroad Company as way-ground, and others aggregating 400 acres; and, in addition, a tract of about 7 acres in Paulding county. That the ward was also the owner of the fee-simple, by virtue of tax titles, of certain other described tracts of lands in Defiance county, aggregating nearly 1,000 acres, all of which, the petition alleged, were wild lands, yielding no income. That he had received no rents whatever from any of the ward's real estate. That its sale was necessary for the maintenance and education of the ward, who was indebted for boarding and lodging in the sum of $210. That there were no liens upon it, to his knowledge; and that the widow had a dower interest in said lands. The prayer of the petition was that the infant and widow be made defendants; that dower be set off to the latter; that the guardian be ordered to sell the real estate for the purposes above set forth; and that petitioner have such other relief as was proper. The court ordered notice to be served upon the widow and infant of the hearing of the petition on the 10th day of August 1869. Personal notice was given to the former, and the latter was notified by a written copy being left at the residence of his mother. The widow filed an answer in the probate court, waiving a formal assignment of dower by metes and bounds, and asking such sum out of the proceeds of sale, in lieu of dower, as was just and reasonable.

On the 10th of August, 1869, the cause was heard, the probate court deciding that the real estate named therein should be sold. Thereupon appraisers were appointed to report its fair cash value. On the 17th of August, 1869, the probate court, without having taken any bond from the guardian, except the one above referred to, which was conditioned simply for the faithful discharge of his duties, made this order: 'It is therefore ordered by the court that the same [the report] be, and it is hereby, approved and confirmed; and the said Edward H. Gleason having upon his appointment as such guardian given bond with reference to the value and sale of the said real estate of his said ward, which bond is now adjudged to be sufficient for the purposes hereof, therefore the giving of additional bond is hereby dispensed with.' And on the 10th day of November, 1869, the following order of sale was entered in said cause: 'Said guardian is ordered to proceed to sell said lands, or any parcel thereof, at private sale, but at not less than the appraised value thereof, and upon the following terms: One-third cash in hand on the day of sale, one-third in one year, and one-third in two years, with interest, payable annually, and the deferred payments to be secured by mortgage on the premises sold.' Within a few days after this order was made, Gleason reported to the probate court that he had sold to John Frederick Harmening, at private sale, and for the sum of $1,537.50, 'that being the full amount of the appraised value thereof,' the south-east quarter of said section 36, excluding the small strip occupied by the railway company The sale was approved, and the guardian directed to make a conveyance to the purchaser; reserving for the widow, in lieu of dower, the sum of $400 out of the proceeds.

The bill charges that on the 15th of February, 1873, more than three years after the said order of sale was entered, and without any new or further appraisement of plaintiff's lands, though their value, as he was informed, had greatly advanced,-and without any additional bond having been executed, Gleason, 'for the purpose of getting money into his hands for his own private gain, and without reference to the true interest of his ward,' and 'willing to allow the said Harmening to get at a low and under price the lands' of the plaintiff, and 'though there was no necessity whatever for said sale, as he, the said Gleason, and the said Harmening well knew,' sold to the latter at private sale, for the sum of $872.10 the east half of the south-west quarter of section 36 in Defiance county, containing 80 acres, and the tract of 7.21 acres in Paulding county; which sale, being reported to the probate court, was by it wrongfully approved, and a deed directed to be made and was made to the purchaser, the sum of $200 being reserved out of the proceeds, pursuant to the order of the court, for the dower interest of the widow. The plaintiff also alleges that, notwithstanding there was no necessity for any further sale or sacrifice of his estate of inheritance, Gleason, on the 4th day of December, 1874, although having in his hands, unexpended, large sums derived from the sale of the above premises, as well as considerable sums received from the release of tax titles, all of which was known to Harmening, and without any new appraisement of the plaintiff's lands, (though they had risen greatly in value,) and without giving an additional bond or obtaining a new order of sale, ('for the purpose of getting money into his hands for his own private gain, without reference to the true interest of your orator in the premises, and willing that the said Harmening should get the lands bought at a low and under price, connived and colluded with him, the said Harmening, to sell the said lands hereinafter described, in violation of his duties and the trust imposed on him, claiming to act on the said order of sale long since entered in said court,-December 4, 1874,-sold Harmening the following described lands, situated in Defiance county aforesaid, viz., the north half of section thirty-six, in township four north, of range three east, and the west half of the same section in the same township and range, containing together four hundred acres, for the sum of six thousand dollars, and reported the sale to the said court on the same day, and the same was without proper examination or opportunity for the friends of the said ward, your orator, or his relatives, to examine the same and advise the said court or the said Gleason in the premises, improperly-illegally confirmed the said sale; and ordered the said guardian to make, execute, and deliver a deed for the same to the said Harmening on his compliance with the terms of sale; and further ordered the said guardian to pay out of the proceeds of said sale the sum of fifteen hundred dollars as and for the dower interest therein held by the said Mary Arrowsmith.') The bill further charges that the order authorizing said sales to be made, as well as the orders confirming them, was illegal; that the sales made by Gleason were in violation of his trust and in fraud of his rights, 'as the said Harmening and the said Gleason well knew;' that he has never received from said Gleason, or from any source, to his knowledge, any of the proceeds of such sales, nor to his knowledge, belief, or information, has any part thereof been applied for his benefit; and that the deeds, placed upon record by Harmening, so cloud his title to said lands that he cannot sell them, or otherwise enjoy the beneficial use of them. After averring that he has been a non-resident of Ohio since 1869; that Harmening enjoyed, up to his death, all the rents and profits of said lands; that his heirs at law, who are infants, and defendants herein, are in possession of them, claiming to hold them under said pretended sales and deeds; and that Gleason has been for a long time hopelessly insolvent, so that an action at law against him would be unavailing,-he prayed that a decree be rendered setting aside and vacating the order of sale in the probate court, and all proceedings therein affecting his title to the lands, and declaring the same, as well as the deeds executed by his pretended guardian, to be void and of no effect. He also prayed for the additional relief, specific and general, indicated in the beginning of this opinion.

Henry Newbegin and B. B. Kingsbury, for appellant.

W. C. Cochran and H. B. Harris, for appellees.

[Argument of Counsel from pages 91-94 intentionally omitted]

HARLAN, J.