127 Va. 209 | Va. | 1920
delivered the opinion of the court.
We think it unnecessary to recite the numerous pleadings or to attempt to summarize the mass of evidence which fihig
Fanny W. Gresham died in October, 1907, so that at that date Curtis E. Grasham became the sole guardian of the complainant. The last settlement of the guardianship account was made September 20, 1908, and it showed a balance of $3,645.30 due the infant as of September 1, 1906. At' the November term, 1911, of the Circuit Court of Fair-fax county, upon the application of the Bonding Company, the surviving guardian, Curtis E. Gresham, being then in default, insolvent and unable to settle with an older sister of his ward for whom he was also guardian with the same surety, was removed, and Samuel W. Cockrell, of Washington, D. C. was appointed guardian of Caroline C. Gresham in his place and stead, and the American Surety Company of New York, hereinafter called the Surety Company became his surety. The order of removal expressly provided that it should not affect any liability of the Bonding Company as surety which had accrued prior to that time, and this would doubtless have been true if it had not so specified.
The first guardian neither paid the amount then due nor . settled his accounts, and died before this suit was instituted.r The trial court held the Bonding Company as his surety responsible therefor, and dismissed its cross-bill which sought to hold the new guardian and the Surety Company as his surety responsible for the loss. . •
We must not forget that the issue here involved is whether the Bonding Company or the Surety Company is primarily liable for the balance due. We do not now inquire as to the default, if any, of the second guardian, Cockrell, and' the consequent liability of the Surety Company, because the primary liability for the loss which was then
As stated, Gresham, the guardian, owed his mother, his co-guardian, $2,000, and had secured it by a second lien on the real estate, and this debt which he alleged belonged to the infant, still remains unpaid. Gresham’s surety, the Bonding Company is here claiming that Cockrell and his surety, the Surety Company, should be held accountable for the loss of a debt which its principal Gresham owed to his ward and has never paid. The Bonding Company surety is pleading the default of its own principal and his failure to account for funds for which it, the Bonding Company assumed responsibility. This Washington city property was sold to satisfy the debt of the prior lienor after the new guardian had been appointed, as the result of which Gresham’s wife ultimately acquired the legal title thereto, and it was made subject to two new liens for similar amounts and priorities, respectively, that is, a first lien of $3,000, and a second lien of $2,000, and Gresham sent the note of his wife for $2,000, secured by this second lien to Cockrell in response to his request for settlement, who declined to accept it without the approval of court. The property was again sold several years afterwards and did not yield enough to pay anything upon this second lien, and the substituted debtor, the wife of Gresham, denies her liability for the amount under a statute of the District of Columbia.
The only other effort at a settlement made by Curtis
As responsive to the claim that the new guardian ’appointed by the Circuit Court of Fairfax county, Virginia, should have taken charge of and collected the rents of the property in Washington, D. C., this from Story on Conflict of Laws (8th ed.), sec. 504, is pertinent: “There is no question whatsoever, that according to the doctrine of common law, the rights of foreign guardians are not admitted over immovable property situate in other countries. Those rights are deemed to be strictly territorial, and are not recognized as having any influence upon such property in other countries, whose systems of jurisprudence embrace different regulations, and require different duties and arrangements. No one has ever supposed that a guardian,
In Clendenning v. Conrod, 91 Va. 419, 21 S. E. 818,. it - is said that the general rule is that a guardian cannot be sued out of the jurisdiction in which he qualifies, and that his powers are strictly local.
In Contee v. Lyons, 8 Mackey (19 D. C.), p. 207, it is held that the high court of chancery of Maryland had no jurisdiction to appoint a trustee to convey real estate in the district of Columbia, and that the decree appointing him is a nullity.
It hardly needs any citation to sustain this general proposition but those who may be curious on the subject will find these cases instructive: Poindexter v. Burwell, 82 Va. 512; Gibson v. Burgess, 82 Va. 650; Winter v. Winter, 82 Va. 890, 5 S. E. 536, 3 Am. St. Rep. 126; Hotchkiss v. Middlekauf, 96 Va. 649, 32 S. E. 646, 43 L. R. A. 806; Proctor v. Proctor, 215 Ill. 275, 74 N. E. 145, 69 L. R. A. 673, note, 106 Am. St. Rep. 168, 2 Ann. Cas. 819; Brine v. Hartford, etc., Ins. Co., 96 U. S. 627, 24 L. Ed. 861.
It was said in argument that the trial court was of opin- - ion that the decree referred to was null and void because the guardian ad litem of the infant defendant was also the commissioner who made the report upon which the decree was based, and the case of Cole v. Johnson, 53 Miss. 94, is -cited as showing that this was error. It is true that in that case the court declined to reverse upon that ground, but in that connection it is said that inasmuch as it might become
In Dillard v. Krise, 86 Va. 414, 10 S. E. 430, it is said that, “The fifth exception to the report is upon the ground that it appears upon its face to have been made by one who is a creditor and a party to the suit. As such, though he is a commissioner of the court, he is incompetent to make a report in the cause. Simmons v. Lyles, 27 Gratt. (68 Va.) 922, 928. In Bowers v. Bowers, 29 Gratt. (70 Va.) 697, this court decreed that an attorney employed in a cause is not a competent commissioner to take an account ordered" in the cause. No judge would sit in a cause wherein he was interested or a creditor; and a commissioner of accounts is a quasi judicial character, and if the law does not, in terms, disqualify him to take and report an account in a cause wherein he is a party, the spirit of it does.”
Another assignment of error grows out of these circumstances: In 1914, before the institution of this suit, the Bonding Company determined to abandon its business in this State and reinsure its risks in the Fidelity and Deposit Company of Maryland, hereafter called the Fidelity Company. It took advantage of the statute (Code, 1919, sec. 4217) and withdrew its bonds which had been deposited with the treasurer of the State as additional security for its Virginia policyholders. The decree in favor of the plaintiff is against both the Bonding Company and the Fidelity Company, and the latter company assigns this as error. The ground of this assignment is that the contract between the two companies is purely a contract of reinsurance, and that there is no privity of contract whatever between the complainant and the Fidelity Company.
In Glen v. Hope Mutual Ins. Co., 56 N. Y. 379, the reinsuring company agreed to reinsure the retiring company On all risks for which its policies were then outstanding, to assume all such policies and to pay to the holders thereof 'h such sums as the original company by force of such policies might become liable to pay; and it was there held that a policyholder could sue the reinsuring company.
The exception is still further extended in Shoaf v. Palentine Ins. Co., 127 N. C. 308, 37 S. E. 451, 80 Am. St. Rep. 804. There the reinsuring company agreed to assume all liabilities under any outstanding policies of the reinsured then existing, on property in the United States and Canada and on any policy that might be written thereafter by the reinsured for the benefit of and under the direction of the reinsuring company, and it was expressly provided that the contract should only be effective as between the companies, and that policyholders should not sue the reinsuring company. It was, however, held that this agreement was more than a mere reinsuring agreement, and that the policyholder might sue the reinsuring, company. Other pertinent cases are Barnes v. Hekla Fire Ins. Co., 56 Minn. 38, 57 N. W. 314, 45 Am. St. Rep. 439 (note); Ruohs v. Traders’ Fire Ins. Co., 111 Tenn. 405, 78 S. W. 85, 102 Am. St. Rep. 790. See also note, Traders’ Ins. Co. v. Aachen, etc., Ins. Co., 150 Cal. 370, 89 Pac. 109, 8 L. R. A. (N. S.) 862.
There are other cases in which it is held that one cannot ' sue another at law who has assumed the obligation of the original debtor because of the lack of privity, but the rule has been criticised and should not be extended.
We are of opinion to affirm the decree.
Affirmed.