
    Sebastian W. Brandau et al. v. Frances L. Greer et al.
    [48 South. 519.]
    1. Guardian and Ward. Acquirement of ward’s property by guardian wife.
    
    The -wife of a guardian cannot lawfully acquire the property of her husband’s ward where the law forbids him to acquire it.
    2. Same. Duty to protect ward. Profit on estate.
    
    It is the guardian’s duty to protect his ward’s estate, and he can-' not make profit on it, except the compensation lawfully allowed him for administering his trust.
    3. Same. Nature of trust. Neglect of ward’s interest.
    
    A guardianship is a trust of the most sacred character, and a guardian cannot he allowed an inducement to neglect the interest of his ward.
    4. Same. Unfairness in acquiring property of ward.
    
    If a guardian acquires his ward’s property under circumstances raising a strong suspicion of unfairness, the transaction will not he allowed to stand when assailed by the ward.
    5. Same. Same. Ratification. Evidence.
    
    Where a guardian unfairly obtained the property of his infant ward and claims that the ward ratified the transaction after reaching majority, the ratification will he ineffectual, unless it he clearly shown that the ward had full knowledge of all the facts, was advised of the law relating thereto and acted freed from the guardian’s influence.
    From tbe chancery court of Bolivar county.
    Hon. Peeey Bell, Chancellor.
    Hiss Greer and others, appellees, were complainants in the court below; Brandau and wife, appellants, were defendants there. From a decree in complainants’ favor the defendants' appealed to the supreme court.
    The bill charged that Sebastian W. Brandau had been appointed guardian of the complainants and took charge of their estate while they were small children, and that valuable property, the lands described in the bill, which had been left by their father incumbered by a deed of trust had been wrongfully permitted by their said guardian to be sold under foreclosure proceedings with a view of vesting the title thereto in his wife and that it was afterwards bought in at said sale by a mere dummy and transferred, without consideration, to Mrs. Brandau, wife of their guardian, and that appellees never realized anything out of a valuable estate left them by their father. The bill prayed the cancellation of the deed to Mrs. Brandau, for a decree for the income from said lands, less expenses, and for possession, etc. The court below granted the relief prayed, and appointed a special commissioner to ascertain the amount due complainants.
    
      J ones & Hardee, for appellants.
    The true rule by which to determine whether or not an infant after attaining his majority has ratified in pais a deed or contract made during infancy, is not whether the act was done with the intention to ratify, as claimed by appellees in their brief, but whether after he has become of age, an affirmance of his contract may be inferred from any act totally inconsistent with an intention to disaffirm, as, for instance, receiving rent from a lease made in infancy. Huth v. Oarondolet Hocico, 56 Mo. 202; Thomas v. Pullis, Id. 211; Emmons v. Murray, 16 N. H. 285; McGormich v. Leggett, 53 N. O. (8 Jones Law.) 425; Wheaton v. East, 26 Am. Dec. 251; Scott v. Buchcunan, 30 Tenn. (11 Humph.) 468; Ecvrr v. Summer, 36 Am. Dec. 327; Manning v. Johnson> 63 Am. Dec. 732; McKamy v. Gooper, 81 Ga. 679.
    ■ In this state the rule is that where the party after becoming of age disaffirms a contract during infancy, he must refund what he has received, particularly if he still has in his possession any part of the consideration. In the instant case appellees are on record as admitting that they are now in possession of a considerable portion of the consideration. Thornton v. Holland, 87 Miss. 470, 40 South. 19; Evans v. Morgan, 69 Miss. 328, 12 South. 270; Kerr v. Belly 44 Mo. 82.
    In Hillyer v. Bennett> 3 Edw. Oh. 222, it is held that “If a person after becoming of age files' a bill to. obtain possession of property parted witb while be was an infant, be will be required to restore what be received upon parting witb tbe property in question, especially if tbe other contractor dealt in ignorance of tbe infancy.”
    
      Nearing •& Townsend and Roy Church, for appellees.
    A guardian cannot purchase property belonging to bis wards at a trustee’s sale for $4,500 for which be was willing to pay $6,000, and have it sustained in a court of equity; nor can bis wife, directly or indirectly, acquire title at such a sale. BrocJeett v. Richardson, 61 Miss. 766; Wise v. Hyatt, 68 Miss. 714; Patterson v. Booth, 103 Mo. 402; Yonce v. McBride, 68 N. O. 532 (486) ; Small v. Small, 74 N. O. 16 (28) ; Low v. Purdy, 2 Bans. (N. Y.) 422; Shelton v. Lewis, 27 Ark. 190; Gordon v. English, 3 Lea (Tenn.) 634; Hayward v. Ellis, 15 Pick. 272; 15 A. & E. Ency. Law, p. -75.
   Mates, J.,

delivered tbe opinion of tbe court.

Under tbe facts of this case Brandau and bis wife must be treated as tbe same person. If it was unlawful for Brandau to acquire from bis wards tbe title to tbeir property, it could never be held that one bolding so close a relation to him as that of wife, and witb such identity of interest as usually exists1 between parties sustaining this relation to each other, could lawfully acquire a title which tbe husband was forbidden to acquire.

There may be many disputed facts in this record, but tbe fact which controls this whole case admits of no dispute. Tbe fact is that Sebastian "W. Brandau was tbe guardian of complainants and took charge of tbeir estate while they were very young. He took them to bis home in Lexington, Mo., and for a time and until they went out to earn tbeir own living they became inmates of bis household. Mrs. Brandau was tbeir aunt, and before they bad reached tbeir majority Brandau, by private contract with them, had succeeded in obtaining the title to one part of the land for himself, and his wife had obtained the title to the remainder from the purchaser whom she and her husband had procured to huy at a sale under a mortgage which had been executed by the father and mother of complainants before their death. In brief, Brandau was appointed guardian of these complainants about the year 1895, and before the year 1903 his wards have no estate and Brandau and wife have a legal title to the entire estate which was left to them. Under the facts of this case it does not become a question as to whether or not Brandau has acted honestly or dishonestly in the matter of acquiring this title. We do not consider this case from that standpoint. But the question is, can such a transaction as this be allowed to stand, in any event, in a court of equity ?

Under all settled rules of law it must be held that whatever title was acquired by either Sebastian W. Brandau, or his wife, under any of the sales or dealings with this property, either by themselves or at the instance of any other party, is held as trustees for the benefit of complainants. No transaction of this sort can or ought to be allowed to stand. It contravenes every rule of law applying to a person in a fiduciary character. It is the duty of the guardian to protect the estate of his ward in every way he can, and he can make no profit on such estate outside of what is provided by law to be allowed him for conducting the guardianship. Brocketf v. Richardson, 61 Miss. 766; Wise v. Hyatt, 68 Miss. 714, 10 South. 37.

We but declare as the law what the courts have tima_ and again announced. A trustee can be allowed under the law to have no inducement to neglect the interest of his ward. A guardianship is a trust of the highest and most sacred character. The guardian assumes to act for the parties, whom the law declares1 without discretion to act for themselves. If such a trustee acquired their property under such circumstances as to raise a strong suspicion of unfairness, the transaction cannot be allowed to stand when assailed by his wards. If ratification is claimed after full age, it must appear by the most undoubted proof that the wards have, with full knowledge of all the facts and the law appertaining thereto, ratified and approved the transaction from which their guardian obtains his vantage. And even then, if the transaction is assailed by the wards, it will not be allowed to stand, except upon clear proof that the act of ratification took place at a time when they were free from the influence of the confidential relation. In short, the wards must have been fully informed and free of former influence.

In this case there was no ratification. It is impossible that there could have been, under the facts shown here. These complainants were unlettered. They had been cast out at an early age to support themselves. They- were under the influence of Brandau to- a very large extent. They had not reached the age of majority at the time these conveyances were made. They were but little past twenty-one years of age at the date this bill was filed asking for a cancellation of the Brandaus’ title. The proof falls far short of showing ratification on their part, or any fact which would warrant this court in holding that they were estopped to claim their property.

The decree of the chancellor is eminently correct, and through its instrumentality justice will be done.

Affirmed and remanded.  