I concur in the view of the per curiam opinion that the court had jurisdiction and power to appoint J.D. Crymes, Sr., as guardian of J.D. Crymes, Jr., and also in the conclusion that the guardian had power under section 1885, Code 1930, to borrow funds from himself by giving proper security under the order of the court made in that behalf.
I dissent from the conclusion that, on the statement of the bill taken in connection with the exhibits thereto, there was any fraud practiced on the court. The guardian was rightfully in custody of the funds, and the sureties on his bond are not liable therefor, where they have been loaned on security approved by the court.
The chancery court, as to the matters here dealt with is a court of general jurisdiction, and every presumption is indulged in favor of the validity of its judgments. Under section 159 of the state Constitution, the chancery court is given full jurisdiction over the business of minors and of cases of idiots, lunacy, and persons of unsound minds. The Constitution thus giving the chancery court full jurisdiction over such matters, it cannot be deprived of that jurisdiction by any act of the Legislature, nor can the Legislature compel the chancery court to accept the judgment of a jury as to any such matters.
The original bill contains the following allegations: "That prior to July 28, 1922, J.D. Crymes, Jr., was committed to an insane asylum without a jury and on July 28, 1922, J.D. Crymes, Sr., father of the lunatic was appointed guardian of the estate of J.D. Crymes, Jr., by decree of the chancery court at Lauderdale county, Mississippi, when he executed a guardian bond approved by the chancery clerk of Lauderdale county, Mississippi, *Page 724 in the sum of one thousand dollars signed as surety by Bob Wall and D.W. Terry, deceased, defendants, a true copy of which bond is attached hereto as Exhibit A and made a part hereof which bond has never been released by decree of the court. That on December 7, 1922, the deceased guardian filed an inventory showing cash receipts of one thousand two hundred dollars and one cent, which inventory was approved by decree of the court, which sum of money the deceased guardian petitioned the court for authority to loan said sum of one thousand two hundred dollars by himself as guardian to himself individually and under such authority as was granted by decree of this court made loan giving to himself as guardian a note secured by deed of trust on land belonging to the guardian individually."
The petition for appointment as guardian reads as follows:
"John D. Crymes, Sr., petitioner, with due respect, shows unto the court, That John D. Crymes, Sr., petitioner, is a resident citizen of Lauderdale county, state of Mississippi, and that John D. Crymes, Jr., is the son of the petitioner, and is also a resident citizen of Lauderdale county, state of Mississippi. That John D. Crymes, Jr., lived with his father until the late world war when he enlisted as a sailor and served in the United States Navy. That while in such service, the said John D. Crymes, Jr., was upon a boat which was torpedoed and it is the belief of petitioner that he suffered some trouble at that time which later affected his mind in that the said John D. Crymes, Jr., has since that time become a victim to some mental disorder, and is now incapable of attending to his own affairs. That, at present, the said John D. Crymes, Jr., is in the Government Hospital at Augusta, Georgia. That certain sums of money are due him from the United States Government, because of the fact that he was injured while in the service of the United States Government, but that it is impossible that said sums of money be collected from *Page 725 the Government until a guardian has been appointed for said John D. Crymes, Jr. That the said John D. Crymes, Jr., has been treated for said mental disorder, but that he is now unable to care for his affairs. That petitioner is the father of said John D. Crymes, Jr., and is a fit and proper person to act as guardian for said John D. Crymes, Jr., and is willing to so act. That the said John D. Crymes, Jr., is an adult, being twenty-three years of age. That the amount of money that petitioner will handle as guardian of said minor will not, in the opinion of petitioner, exceed one thousand dollars.
"Premises considered, petitioner prays that letters of guardianship be issued to him, appointing him guardian of said John D. Crymes, Jr., upon his furnishing bond in the sum of one thousand dollars, conditioned according to law, and upon his taking the oath prescribed by law.
"And if petitioner has prayed for wrong or insufficient relief, then for such other, further, different and general relief as petitioner may be entitled to, and in duty bound will ever pray."
It will be seen from this petition and bill, that it is alleged that John D. Crymes, Jr., has become afflicted with some mental disorder and is confined in a government hospital for the insane at Augusta, Georgia.
By section 1894, Code 1930, guardians for persons of unsound mind are provided for, and section 1896, Code 1930, provides for guardians for insane persons who have property in this state, although they may be confined in an institution in another state.
It is clear from section 1896, Code 1930, that the court had the power to appoint a guardian for John D. Crymes, Jr., who was then confined in an insane hospital outside the state. No jury is required under this section. Where a person is incapable to care for himself and has property in this state, the chancery court has the power to appoint a guardian for his estate in the county in which *Page 726 the property is situated. It would be impossible to serve legal notice upon a non compos mentis in a foreign state, or for him to be present in this state for a jury to pass upon such proposition. The power of the chancery court being full and plenary, and such power having been conferred thereupon by the Constitution, its orders are not void where the petition contains sufficient facts to show that the person is non compos mentis and is confined outside the state, which the bill and petition for guardianship clearly show.
In Neely et al. v. Craig et al., 162 Miss. 712, 139 So. 835, we held that the court, having full constitutional jurisdiction, is not entirely dependent upon statutes respecting procedure; that the court has full power to sell the property of infants for reinvestment, and that, where a court, having full constitutional jurisdiction, has acted under procedure adjudged sufficient, its judgment cannot be collaterally attacked.
In Kelly v. Neville, 136 Miss. 429, 101 So. 565, we held that under section 159 of the Constitution, the chancery court has full jurisdiction of all matters in equity, matters testamentary, administration, and minors' business, and has the inherent power to sell the estate of a minor for reinvestment in better paying property, whether the minor be in existence, or an unborn remainderman.
In the case of State v. Marshall, 100 Miss. 626, 56 So. 792, Ann. Cas. 1914A, 434, we held that a court of equity cannot refuse to enforce penalties created by statute, but that rule has no application to any but penalties imposed by private contract. We also held that under section 159 of the Constitution, the chancery court has full jurisdiction in all matters of equity; that it is within its power to adjudge what is a matter of equity; and that when the court takes jurisdiction of a subject it ought to dispose of it fully and finally.
In Bank v. Duncan, 52 Miss. 740, we held that "full jurisdiction" implies that nothing is reserved, and when *Page 727 the court takes hold of a subject, it ought to dispose of it fully and finally.
It is plain from general principles of law that a court of general jurisdiction will be presumed to have done everything required to be done in the exercise of its jurisdiction, and under the decisions cited, supra, the chancery court had before it questions over which it had full jurisdiction, and we must assume that the chancery court made due inquiry into whether the ward was non compos mentis, and if he was in a proper institution.
The bill itself alleges that the ward in the case at bar was confined in a hospital for the insane, and the exhibits to the bill show that he was being treated there for mental disorder and was incapable of attending to his own business.
In my view, the court can always, on proper application, accompanied by the bond required by law, appoint a suitable person as guardian of a non compos mentis, whether he is within the state or outside the state, or whether he is confined in a hospital for the insane or not. The Constitution saw proper to confer upon the chancery court full jurisdiction over this matter, independent of legislative action. It is true, in the absence of legislative proceedings, the rights of parties would be governed by the common law. The Legislature may regulate the proceedings, but it cannot deprive the chancery court of jurisdiction over personal estates of lunatics or persons non compos mentis. In the exercise of this jurisdiction, the chancery court is the parens patriae of persons non compos mentis and cannot be deprived of its jurisdiction, and, being a court of general jurisdiction, everything will be presumed in aid of that power.
As the case is here on a demurrer, the allegation that John D. Crymes, Jr., is confined in an insane asylum is bound to be true, and it is clearly shown in the record that he is confined in such hospital in Augusta, Georgia.
Chapter 34, Code 1930 (section 1863 et seq.), confers very large powers upon chancery courts as to all matters *Page 728 of guardianship, and section 1885 thereof gives the chancery court the power to designate upon what security, and to what persons, the guardian may lend money belonging to his ward. Money may be loaned upon good security, and, when passed upon by the court and adjudged to be sufficient, and when so made, responsibility shall not attach thereafter to the guardian. In the case before us, the orders of the court show that the court adjudged the sufficiency of the security and authorized the loan, which was made in pursuance thereof. The bondsmen of the guardian are not responsible, either personally or on their bonds, where the chancery court has exercised jurisdiction and passed upon the security and the propriety of the loan. The right of a guardian to use money of his ward, at interest, has been recognized in this state. See Davis v. Harris, 13 Smedes M. 10, where the court said: "Whenever a guardian has money of his ward in his hands, the probate court will either permit him to take it on interest, or direct him to place it at interest, taking bond to the orphan, with security approved by the court." See, also, Jefferson v. Glover, 46 Miss. 510 (second syl.), and page 521; Roach v. Jelks, 40 Miss. 754, at page 756; Crump v. Gerock,40 Miss. 765; Reynolds v. Walker, 29 Miss. 250; Johnson v. Miller,33 Miss. 553; Garland v. Norman, 50 Miss. 238.
It is none of our concern that, after the chancery court has approved a loan, the security may, for some reason, become insufficient and the funds be lost. The record shows fully and conclusively that the property given as security for the loans at the time each was made was sufficient. When the court passed an order approving the third loan and releasing the prior deeds of trust, then the prior sureties were released. Whatever may have been the fact as to whether the guardian had any money in his possession or not, the security given for the money stood in the place thereof.
Assuming merely for the purpose of argument, that *Page 729 the guardian had, in fact, converted the money to his own use, still he had ample security to offset it, and this security had been accepted by the court and the prior bondsmen released.
However, the supplemental bill undertaking to charge fraud upon the court, when considered in connection with the exhibits to both bills, is insufficient to show real embezzlement or willful misappropriation of the money. It is alleged in this bill that the deceased guardian had taken the ward's money and given the deed of trust when the prior deed of trust was unpaid and uncanceled; and that the same was for the guardian's own benefit, and that, at the time the deceased guardian petitioned the court to be allowed to lend himself said trust funds, he represented to the court that certain facts were true, which were not, in fact, true. The first part of the allegation implies that the guardian placed the trust funds in the bank to his own personal account. If that was true, it was not embezzlement to place funds in the bank for safekeeping, and when he gave security which was approved by the court, the loan so authorized stood in lieu of, and represented the money itself, and the loans were valid. The court could have required him to produce the money, but until the court issued such order it was, in legal contemplation, in the possession of the guardian. The record shows that, subsequent to the taking of the last deed of trust, a portion of the property embraced in the security for that deed of trust had been sold for an amount in excess of the total amount borrowed, and that the remainder of the property embraced in the security had been inquired of with the view of purchasing it at a price largely in excess of the total amount of money due by the guardian.
The exhibits to the bill, including the decrees of the court, show that some of the money was invested in improvement of the property used as security.
It must be remembered that this transaction originated in 1922 and the guardian died in 1930, and that during *Page 730 this period values of property had constantly risen. The record shows that the lands offered as security were improved by being divided into lots and by installing a water system upon the property. The chancellor, so to speak, was upon the ground, and was familiar with the conditions then existing, and we certainly can presume, what was a fact, that the property was, at all times, more than sufficient to secure the trust funds, until after the third bondsman was accepted and approved by the court. The order of the court provided for the giving of a deed of trust upon the property, which was actually done, and the security was then more than sufficient to fully secure a repayment of the loan. In other words, there never was, at a time prior to the great depression which began in 1929, any doubt as to the security being more than ample to repay the loans, and the property was adjudged by the court to be more than sufficient to pay the actual loans. This, certainly, would not constitute fraud. If conditions had remained as they were before 1929, no possible loss would have resulted. It is shown that one of the banks of Meridian, and one of the building and loan associations there, made loans upon this property subject to the deeds of trust in favor of the ward, showing that prudent and experienced business men regarded the security as being more than ample to pay the debt.
This being true, the bondsmen in the first two deeds of trust were certainly entitled to rely upon their discharge and the acceptance of suitable successors. The fact that the third bondsman, the surety company, is in liquidation, is wholly immaterial, so far as the liability of the first two bonds is concerned. The surety company was then authorized to do business in this state and was in a solvent condition, and the guardian made actual reports which were received and approved by the court. How, then, can it be said, in view of these facts, that fraud was perpetrated upon the court? The chancery court had authority to release the bondsmen from further *Page 731 liability, and its order doing so had the effect of accepting the security and retaining it in lieu of the actual cash.
I think the court was authorized, under the conditions then existing, to release, as it did, the property from the last deed of trust. The proof showed that, at the time the chancellor issued this decree, the security remaining was more than ample to secure the loan.
We all know that market values have their high and low points, and that many strong financial institutions have gone down in the late financial storm. Likewise, many prudent, solvent business men have become bankrupts, not because of lack of judgment, but due to the terrific conditions which have existed during the past few years.
Although the complainant, Martha Crymes, filed her bill against the appellant, the Pan-American Life Insurance Company, she, herself, has not made her inventory or report to the court, nor shown what property she received. It is true her successor has filed an answer to the bill showing inadequate property and funds to pay the debts probated against the estate. But there is no showing that the lands owned by J.D. Crymes, Sr., guardian, when he died, have proved inadequate, for no sale has been made.
In United States F. G. Co. v. Dickson, 111 Miss. 752, 72 So. 150, we held that, even if a guardian be held liable for funds lost by failure of a bank in which such funds were deposited, she should be accorded opportunity to make good the loss, and to render an account of her stewardship on a final accounting of her trust before being subject to the ward's suit.
In Cohn v. Winslow, 115 Miss. 275, 76 So. 264, we held that when the chancellor designates the person to whom the ward's money may be loaned, and the loan is so made, responsibility shall not thereafter attach to the guardian.
In Re Adams' Guardianship, 152 So. 836, we held that *Page 732 where a guardian applied to the chancery court for an order authorizing a time deposit of the ward's money, particularly where such deposit was then protected by the depositor's guaranty fund, he was not liable for any loss during the time the funds were secured by the guaranty law. It is true we also held that after these conditions changed, it was the duty of the guardian to act promptly in accordance with the changed conditions.
In Coffin v. Bramlitt, 42 Miss. 194, 97 Am. Dec. 449, it was shown that when a guardian lends the ward's money to be repaid in a depreciated currency, he is responsible for the loss.
Here the guardian was authorized by the court to lend the money to himself, upon ample security, and neither he, nor his sureties, are liable for the resulting loss. Where the court approved the loan, and the security was ample, the sureties cannot be held liable, as they are not obliged to know more about the loan than the chancellor. In my view, it would be impossible to hold the sureties liable for loss, if any, that may occur by reason of depreciation of the security given, due to causes beyond their control.
I am, therefore, of the opinion that the bill does not state a cause of action against those who demurred to it, and that the demurrer should have been sustained.