Gambar halaman
PDF
ePub

Pace v. Pace-Opinion of Court.

and real, left by the decedent, when given a signification with reference to a period subsequent to his death, and that is the date when the benefit was to accrue. Such literal legal signification would be absurd. The word benefit in a policy of insurance must be interpreted with reference to persons, not things. An insurance may be for the benefit of the person owning a house, not for the house. To benefit stocks and stores was not the intention of the parties. Without entering into any elaborate discussion of the subject we will simply state that the cases having a bearing upon the subject (Myers vs. John Hancock Ins. Co.. 41 Mo., 538; Clinton vs. Hope Insurance Co., 45 N. Y., 454; Globe Insurance Company, vs. Boyle, 21 Ohio State, 119,) shows that these and similar terms, under the circumstances of this case, are so interpreted as to benefit the surviving members of the family rather than for the benefit of the creditor or administrator, and that in this instance the beneficiary intended was the infant child. the interpretation of contracts of this character the courts go a great way in this direction. This, we think, would have been the construction of this policy independent of the policy of the statute, which, as a matter of course, should have some effect in controlling our action in the matter.

In

With this construction of the policy the necessary result is that upon the death of the assured the child became entitled to its proceeds, had title thereto, and that the administrator, the legal representative, had no title, and was in no way entitled to possession or control thereof.

The infant, therefore, does not here claim as heir or distributee. His claim is like that which a stranger would make if he were the beneficiary. The necessary result of this is that the sureties of the administrator are not responsible for the management of this fund by Pace. The fact that he did, as administrator, receipt for the property of the

Pace v. Pace-Opinion of Court.

child cannot bind his sureties. The sureties upon the bond of an administrator who has collected moneys, neither assets of the estate nor subject to distribution by him, and to which, as the legal representative of the decedent, he was not entitled, are not liable for any appropriation or use of the same by the administrator for his personal benefit. Hodges' Appeal, 9 Ins. Law Journal, 769; Miller's Appeal, 48 Penn. State, 391; Reeves vs. Steele, 2 Head, 649; Gregg vs. Currier, 36 N. H., 200.

But the plaintiff alleges that the defendant, who is now in posession of these funds, was appointed his guardian, and unquestionably he is liable in equity to account to him therefor. In this aspect of the case are the guardian's sureties necessary parties to this proceeding? This court, in the case of Henry et ux. vs. Clardy, 8 Fla., 82, which was a case of a bill by ward against guardian and sureties, remark: "That in cases of this character the surety ought always to be made a party to the taking of the account." If the court meant by this language that the surety not only ought to be made a party, but that he must be made a party, then such doctrine is not sustained by the authorities. We think with the court in that case that he ought to be made a party, because he is bound by the account by virtue of the general nature of his contract, and of the privity of contract between him and his principal, but the rule from the cases is that he is proper but not a necessary party. Hailey vs. Boyd's Administrator, 64 Ala., 400; Payne vs. Hook, 7 Wall., 425; Pfeiffer and Sullivan vs. Knapp, 17 Fla., 146; Pratt vs. Wright, 13 Gratt., 181.

As to the objection that the suit should be instituted in the name of the Governor, we simply say that the right of the infant is not limited to an action upon the bond of the guardian in the name of the Governor. Chancery has jurisdiction to have an account to restrain any improper disposi

Mattair et al. v. Card-Syllabus.

tion of the fund, by its process to preserve it, and for final decree, and in proper cases to remove the guardian.

The necessary result of these views is that the judgment overruling the demurrer is affirmed.

MARY A. MATTAIR ET AL., APPELLANTS, VS. CHARLES P. CARD, ADMINISTRATOR, APPELLEE.

1. A bill to procure the reversal, alteration or explanation of a decree made in a former suit, except for fraud in obtaining such decree, is a "bill of review." Such bill can only be brought upon error in law appearing on the face of the decree without examination of matters of fact, or upon new matter discovered after the decree which could not have been used when the decree was made, unless the decree appears to have been made in violation of law. 2. The validity and sufficiency of a mortgage, and the capacity of the parties executing it (being adults), are established by the decree of foreclosure, and such decree is conclusive against the parties unless reversed on appeal, and cannot be set aside or annulled by bill or review except upon newly-discovered evidence.

3. The due execution of a mortgage of a homestead is established by a decree subjecting the property to sale to pay the mortgage upon bill to foreclose it.

4. A judgment or decree unreversed is conclusive upon parties and es tops them from setting up in a new suit brought to annul or set it aside, any matter of defence of which the parties could have availed themselves in the original proceeding, the evidence of the facts constituting the defence having been known to the parties in due time.

Appeal from the Circuit Court for Duval county.
The former case before this court referred to in the opin-

ion is to be found in 18 Fla. Repts., 761.

The facts of the case are stated in the opinion.

C. P. & J. C. Cooper for Appellants.

Geo. Wheaton Deans for Appellee.

Mattair et al. v. Card—Opinion of Court.

THE CHIEF-JUSTICE delivered the opinion of the court: Appellants (complainants below) filed their bill to annul and set aside a decree of foreclosure heretofore obtained by appellee against them in the Circuit Court for Duval county.

They allege that in 1879 Card, as administrator, &c., of L. D. Alexander, filed a bill against them to foreclose a mortgage in favor of Alexander covering a lot in Jacksonville, (the title whereof was vested by deed in Mrs. Mattair,) given to secure a note of $3,000; that they separately answered the bill setting up their defences; that exceptions tc said answers were sustained in part; that testimony was taken and a master's report made, and a decree made in April, 1881, subjecting the lot to sale to pay the amount of the note and interest; that they appealed from the said decree to the Supreme Court, where the same was affirmed with a direction to the Chancellor to order that the property be sold in parcels if the appellants so desired, it appearing that a part of the property was the home of the family. They allege that a declaration of their homestead claim had been filed according to law with the County judge long before the making of the mortgage, in which the easterly part of the lot was designated as their homestead, while the whole of the lot was included in mortgage; and that the County Judge had not Consented to the mortgage of the homestead; wherefore it is insisted that the mortgage upon the homestead portion is illegal and inoperative; that the west half of said was conveyed by L. D. Alexander to Mrs. Mattair, and was the consideration of the note and mortgage; that appellants did not know when executing the mortgage that it included the east half, and if they had known it they would not have signed the mortgage; that when S. R. Mattair signed it "he was in such an intoxicated and

the

1ot

Mattair et al. v. Card-Opinion of Court.

drunken condition that he was incapable of comprehending what was going on or being done;" that they were both deceived by Alexander, who procured the mortgage to be so drawn as to include the whole lot, while they supposed it covered only the half lot purchased of him. They further allege that the mortgage is not on its face a valid instrument in that it is a conveyance by Mrs. Mattair only in the granting clauses, her husband signing the same as 'consenting" thereto, and therefore it is not a joint conveyance binding her separate real property.

They offer to reconvey the west half of the lot to the administrator or to Alexander's heirs.

They pray a decree cancelling the deed of Alexander to Mrs. Mattair of the west half of the lot and authorizing them to reconvey in full satisfaction of the note and mortgage, and that they be given up and cancelled, and that the appellee be enjoined from selling the east half under the said decree, and that the decree be annulled and set aside for fraud in obtaining it, for illegality in subjecting the homestead to forced sale contrary to law, and for general relief.

Appellee demurred to the bill on the grounds of want of equity and that the matters set up in the bill are res adjudicata, as appears on the face thereof. Appellants joined. in demurrer, and upon the hearing thereof the Chancellor sustained the demurrer and dismissed the bill. From this decree complainants appeal.

A reversal is prayed on the ground that the bill is "full of equities," and because some of the matters alleged have not been before the court and are not adjudicated, to-wit: the question of the mortgage being the act and deed of the parties, and the question of the validity of the mortgage upon the homestead without the consent of the County Judge thereto.

« SebelumnyaLanjutkan »