Parr v. State ex rel. Cockey

Alvey, C. J., delivered the opinion of the Court. This is an action on a guardian’s bond brought against the principal and sureties for the use of the ward, and the ²²⁹ case is here ou the appeal of the sureties alone; the principal not appearing to have made defence to the action. The principal questions in the case arise on the pleadings, and hence it is necessary, to an intelligible understanding of the questions and how they are presented, that we state the pleadings with some fulness. The declaration sets forth the condition of the bond; the settlement by the guardian in the Orphans’ Court of an account showing a balance in his hands due the ward of $10,591.30; the fact of the arrival at age of the ward; and assigns as a breach of the condition of the bond the failure of the guardian to pay over to the ward the sum of $7,707.97 of said balance, alleged still to be due and owing.

The defendants, the sureties in the bond, filed three pleas. 1. That the guardian did not settle in the Orphans’ Court any such account as that alleged in the declaration. 2. That after the ward became twenty-one years of age, he executed and delivered to the guardian a full and complete release of all claims against him as guardian. And 3.

That after the ward became twenty-one years of age, in consideration of the transfer to him by his guardian of certain valuable property, he executed and delivered to his guardian a full release of all claims against him as guardian; and that to the prejudice of the defendants as sureties, the ward took possession of and title to said property, while it was of large value, and did not repudiate said release, or seek to have it set aside, or notify the defendants of any objection thereto, or of any claim against them, under said bond, until after said property had become utterly worthless. The plaintiff joined issue on the first plea; and, by way of replication to the second and third pleas, alleged that the ward was induced to execute the release mentioned in said pleas by the fraud and fraudulent representations of the guardian; that, as soon as the fraud ²³⁰ was discovered by the ward, he filed a bill in equity in the Circuit Court of Baltimore City against said guardian to have the said fraudulent transfer annulled, and said release vacated and set aside; that the defendants, as sureties of the guardian, were notified of the filing of such bill in equity, and that they employed counsel to appear and defend the said case, and were represented by such counsel throughout the entire proceeding, and that they paid the fees of such counsel; that through their counsel they cross-examined the witnesses for the plaintiff, and produced and examined witnesses on their own behalf, and paid the costs of taking such testimony; that counsel so employed by them argued the case in the Circuit Court, and that, after the decree, which declared said release to be null and void> and adjudged and directed the guardian to pay to the said ward the sum of $Y,Y0Y.9Y, with interest thereon from the 2Yth of November, 1880, the defendants, by their counsel, prosecuted an appeal from such decree to the Court of Appeals, and that they paid the costs of such appeal; that the counsel so employed argued the case in the Court of Appeals, and that said decree, so appealed from, was in all respects affirmed by the said Court of Appeals; and so the plaintiff avers that the defendants, in consequence of such notice to 'them of said proceedings, and of their participation therein, became parties to said cause, and are conclusively bound by said decree to the same extent that the said guardian, Edward D. McConkey, is bound thereby; and the plaintiff pleads and relies on said final decree as a conclusive adjudication, estopping the defendants from setting up the matters and things set forth in their said second and third pleas. To this replication there were three rejoinders. 1. That the said ward was not induced to execute the release mentioned, by false and fraudulent representations of the guardian. 2.

That the ward did not, as soon as he dis ²³¹ covered the alleged fraud by which the release was procured, file his bill in equity against the guardian to have the transfer therein referred to annulled, and the release vacated and set aside. Upon these two rejoinders issues were joined. By the third rejoinder to the replication, the defendants aver that the counsel employed by them to defend said cause was employed to do so in the name and on behalf of the guardian, Ed. D. McOonkey, the only defendant in said cause; that said counsel was only permitted by said guardian to make, and did only make, defence therein in the name, under the control and as the representative of the said guardian; that the present defendants were not represented by such counsel throughout said proceedings, but that, as counsel of the guardian, and not of these defendants, said counsel produced witnesses on behalf of the guardian, cross-examined witnesses produced by the plaintiff, took an appeal, and argued the case in the Court of Appeals, and advanced the money due by the guardian to pay the costs of taking testimony and costs of the appeal. And they aver that they did not, and could not, control the defence in said proceedings, or in any of them; that if they could have controlled the defence in said proceedings, they could and would have procured competent testimony, material to the issues involved in said proceedings, and that the said decree would not have been rendered; and that, therefore, they did not become parties to said proceedings, and are not conclusively bound by said decree rendered therein.

To this rejoinder the plaintiff entered a general demurrer, which was sustained by the Court below, and judgment was entered on the demurrer for the plaintiff. Whether this demurrer was properly sustained, is the first question presented on this appeal. It may be stated as a well settled general rule of pleading that, whenever a material foot loell pleaded is ²³² passed over by the adverse party ivithout denial, whether it be by pleading in confession and avoidance, or by traversing some other matter, or by demurring in lato, it is thereby, for all purposes of pleading at least, conclusively admitted. Or, as stated by the Queen’s Bench, such tcan admission made in the course of pleading, whether in express terms, or by omitting to traverse lohat has been before alleged, must be taken as an admission for all purposes regarding the issue arising from that pleading, whether the facts relate to the parties or to third persons, provided the allegations so admitted be material. ” Bingham vs. Stanley, 2 Q. B., 127; Robins vs. Maidstone, 4 Q. B., 816.

Therefore, if the plaintiff in his replication makes séveral averments, which the defendant does not traverse in his rejoinder, to which the plaintiff demurs, judgment shall be for the plaintiff; for Avhat is materially alleged must be traversed, or it is always taken to be admitted. Com. Dig., tit. Pleader, (G. 2.).

Now the plaintiff, in the replication to the second and third pleas of the defendants, expressly avers and sets-forth the material facts of the filing of the bill in equity by the ward against the guardian; the obtaining the decree of the Circuit Court setting aside and vacating the release, and also decreeing the payment of a certain sum of money by the guardian to the ward; and that such decree was affirmed on appeal. It also further avers that the present defendants, as sureties of the guardian, were not only notified of the pendency of the suit, but that they actually employed counsel to defend the same, and that they were in fact represented in those proceeding's by such counsel, who was paid by the defendants. These facts, most material in their character, have not been traversed or denied by the defendants in their rejoinder. They admit that they had notice of the pendency of the proceeding, and that they did in fact, employ counsel to appear in and defend that cause; but ²³³ they aver that it was to be done in the name and on behalf of the guardian, and that the defence was so conducted.

They traverse certain subordinate facts alleged in the replication, and then aver that they did not and could not control the defences of the equity suit, and that if they could have done so, the decree would not have been made; wherefore they aver that they were not parties to that proceeding, and are not conclusively bound by the decree therein. This latter averment is but the legal conclusion supposed to follow from the facts previously stated in the rejoinder, the correctness of which is not admitted by the demurrer. Suppose, however, we concede for the moment the correctness of that conclusion, and treat the case as if the defendants here had not so far participated in the defence of the equity suit as to bind them as parties thereto, the question then is, upon the facts admitted in pleading, how are the defendants, as sureties of the guardian, affected by the decree that was passed? In the first place, if there had been no question made as to the defendants’ becoming parties to the equity suit, there could be no doubt of the effect of the decree, so far as the release is concerned.

The release wms given to the guardian as an acquittance by the ward; but if it ■was given under circumstances, whether of fraud or mistake, such as affected its validity, it was subject to be vacated and annulled as if it had never