KIRSCH v. GREEN

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Docket Number

8 Div. 711.

Attorney(S)

W. L. Chenault, of Russellville, for appellant. The note and mortgage were personal property, and the guardian had a right to sell and dispose of the ward's personal property without an order of court and to transfer choses in action. 28 C.J. 1134; Echols v. Speake, 185 Ala. 149, 64 So. 306, Ann.Cas. 1916C, 332; Bank of Guntersville v. United States F. G. Co., 201 Ala. 19, 75 So. 168; Harton v. Powell, 201 Ala. 467, 78 So. 373; Field v. Schieffelin, 7 Johns.Ch.(N.Y.) 150, 11 Am.Dec. 441. Appellant is a holder in due course. Code 1923, §§ 9078, 9083. The indebtedness of C. D. Sparks to appellant was a valuable consideration for transfer of the note and mortgage in payment of said indebtedness. Code 1923, § 9053. Jas. L. Orman, of Russellville, for appellees. The words "as guardian" appearing after the name of Mrs. Sparks, as payee and as indorser, was notice enough to put appellant on inquiry. 8 C.J. 515; Ward v. City Trust Co., 192 N.Y. 61, 83 N.E. 585; Wolffe v. State, 79 Ala. 201, 58 Am.Rep. 590; Doe v. Northwestern Coal Co. (C.C.) 78 F. 62; Farmers' M. Bank v. Sanford, 150 Ala. 195, 43 So. 226; Steinhart v. Gregory, 176 Ala. 368, 58 So. 266. The guardian may not sell choses in action of the ward for less than face value without an order of court. Code 1923, § 8171; Hendrix v. Richards, 57 Neb. 794, 78 N.W. 378.

Judges

ANDERSON, Chief Justice.

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KIRSCH v. GREEN et ux.

ANDERSON, Chief Justice.

It may be conceded that the guardian had the right to dispose of the note and mortgage. Echols v. Speake, 185 Ala. 149, 64 So. 306, Ann.Cas. 1916C, 332. But we think the assignment of the note and mortgage in question, that is, assigning it by the guardian to her husband to be used and applied as a credit on the mortgage from the husband to the complainant, Kirsch, was a flagrant devastavit.

Whether the note, which on its face is payable to Mrs. Sparks as "guardian" and was assigned by her as "guardian," was notice to the purchaser, Kirsch, of a probable limited or restricted authority to negotiate the same, 8 C.J. 515; Wolffe v. State, 79 Ala. 201, 58 Am.Rep. 590, is unnecessary for us to decide, as the evidence was ore tenus and the trial court was warranted in finding that Kirsch, who held a mortgage on Sparks, the husband, knew his financial condition and that he could not and did not make a bona fide purchase of the note and mortgage from his wife, the guardian of her minor son.

The decree of the circuit court is affirmed.

Affirmed.

GARDNER, BOULDIN, and FOSTER, JJ., concur.

KIRSCH v. GREEN et ux.

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