1 -Alice M. Knox is the adopted child of Charles H. and Sarah I. Knox. Her stepfather died in the year 1890, and her stepmother, Sarah J. Knox, was appointed guardian of her estate. In the year 1893 this guardian had the sum of one thousand eight hundred and fifty-one dollars in her hands, belonging to her ward. In March of that year she, without authority or direction from the probate court, purchased from defendant Richards a note for the sum of one thousand dollars, secured by mortgage on some Dakota land, that had been *168made to Richards by some parties named Moench. The note was indorsed to Sarah J. Knox as guardian. Mrs. Knox did not report her purchase to the probate court, as we understand it; but, if she did, her report was not approved. On February 4, 1894, Mrs. Knox died, and on April 26th of that year defendant John Somerville was appointed executor of her last will and testament. About February 10, 1894, plaintiff was appointed guardian of the person and property of Alice M. Knox, to succeed Mrs. Knox. Shortly thereafter he demanded and received from the executor, Somerville, the Moench note and mortgage, and included it in his inventory of property belonging to his ward. He also received eighty dollars in interest thereon from defendant Richards, which he reported to 'the court. He also redeemed the land covered by the mortgage from tax sale; but, as soon as he learned there had been no order of the court áuthorizing the investment of his ward’s funds in the mortgage, he immediately collected the amount paid out in redemption, from tax sale from the mortgagors, with interest. Alice M. Knox attained her majority June 17, 1896, and on October 15, 1897, plaintiff filed what he called his “final report,” in which he referred to the Moench mortgage, and certain cash items received by him, amounting in all to one thousand five hundred and eighty dollars, as all the property and money coming into his hands belonging to his ward. In December of that year the ward filed objections to the report. Two supplemental reports were filed by the guardian. The court made an order that the guardian collect and bring into court, in cash, the funds belonging to his ward, at the October, 1897, term of court; and on December 13, 1897, plaintiff filed his petition in this case, in which he seeks to recover from Richards and Somerville, executor, the amount of money belonging to his ward that was invested by Mrs. Knox, as guardian, in the Moench mortgage; claiming that the former guardian had converted that amount of her estate, and that Richards had received the same^ knowing it *169was trust funds, and that he should account therefor. He tenders the note and mortgage to defendants, and asks judgment for the amount converted, with interest. By agreement of counsel, and with permission of the court, Alice. M. Knox intervened; asking an accounting from her two guardians, and seeking to charge plaintiff with neglect and carelessness in the management of her property. The objections of Alice M. Knox to the reports of her guardian, Easton, were, by consent of parties, also brought into the case, to be considered and determined on the evidence adduced. Defendant Somerville, executor, denied the allegations of plaintiff’s petition, but admitted he held, for the benefit of Alice M. Knox, certain sums bequeathed to her by the will of Sarah J. Knox. He also pleaded laches and negligence on the part of plaintiff, and an estoppel based on plaintiff’s conduct with reference to the Moench mortgage. Defendant. Richards denied the allegations of the petition, and also pleaded laches, negligence, and estoppel. In answer tó the petition of intervention, various pleadings were filed, that need not at this time be referred to. Plaintiff, in answer, however, admitted having two hundred and ninety-two dollars and ninety cents in cash belonging to his ward, subject to deductions for expenses, etc., but denied all negligence in the management of her estate. The trial court, as we, have stated, rendered judgment against defendants for the amount of money invested by Mrs. Knox, as guardian, in the Moench mortgage, with interest, less the sum of eighty dollars found to have been paid by Richards. It also found that plaintiff had in his hands a balance of one hundred and fifty-seven dollars and ninety-two cents belonging to his ward, which amount he was ordered to turn over to the clerk of the court for her benefit. It also found that the estate of Mrs. Knox was indebted to. Alice M. Knox in the sum of four hundred and fifteen dollars and eighty cents, money in her hands at the time of her death, belonging to her said ward; and judgment for the amount was ordered *170against Somerville, as executor, and lie was ordered to pay the same to Alice M. Knox. All parties save plaintiff appeal.
2 3 4 5 6 7 Some preliminary questions will be settled before going to the main points: Somerville contends that there is a. mis joiner of parties and of causes of action. This point does not seem to have been made in the court below, and consequently cannot be considered on appeal. Hines v. Horner, 86 Iowa, 594; Miller v. Railway Co., 63 Iowa, 680. Again,- he argues that, by pursuing Richards, plaintiff elected his remedy, and cannot pursue the executor. This also seems to be presented for the first time in this court. There is no issue that justifies any such contention. Moreover, plaintiff asked judgment against both defendants for the conversion of the funds belonging to his ward; and as the remedies against the receiver of the funds and the guardian, who unlawfully converted them, are not inconsistent, there was no election of either rights or remedies. Kearney Milling & Elevator Co. v. Union Pac. Ry. Co., 97 Iowa, 719. It is also- contended that the district court had no jurisdiction of a cause of action, or claim against one deceased; that it should have been presented to the probate court. That question was not made in the trial court by motion or otherwise. The action was before the right judge, and in the right court, but the claim or petition was not entitled as in probate. The district court had jurisdiction. Defendant’s remedy was by motion, or perhaps by demurrer;. and, as he failed to exercise it, he cannot complain. Bank v. Green, 59 Iowa, 171; Goodnow v. Wells, 67 Iowa, 654; Clough v. Ide, 107 Iowa, 669. A suit in equity was the proper remedy, in the absence of objections on the part of the executor. Bank v. Johnson, 94 Iowa, 212; In re Allgier, 65 Cal. 228 (3 Pac. Rep. 849). Further, it is argued that the claim against the-estate of Sarah Knox is barred by the statute of limitations relating to claims against estates. *171If this defense had been pleaded, there would be much force in the argument. But it was not. The executor appeared by counsel, and filed voluminous pleadings, setting forth his various defenses, but at no place does he plead the statutory bar. In view of the manner in which the case was tried, it seems that such a pleading was necessary, if reliance was placed on such defense. Again, it may be well doubted whether the statute relating to the time of filing claims has any application to the case. The investing of the money in the Moemeh mortgage without the authority of and direction of the court was, as we shall see, merely voidable. The ward, on arriving at age, might have elected to accept the mortgage. Had she done so, there would have been no liability on the part of the first guardian or of her estate. The claim then was, in a sense at least, contingent, and did not mature during the life of the first guardian. In such cases the statute does not apply. Savery v. Sypher, 39 Iowa, 675; Wickham v. Hull, 102 Iowa, 469; Senat v. Findley, 51 Iowa, 20. Moreover, the ward was not a creditor of Mrs. Knox. The relation of debtor and creditor did not exist between them until the minor became of age. Humphreys v. Mattoon, 43 Iowa, 556; Thomas v. Pyne, 55 Iowa, 348. Easton was not appointed guardian until after the death of Mrs. Knox, and he held no claim against her at the time of her death, and it may.well be doubted whether the statute applies to him. See In re Allgier, 65 Cal. 228 (3 Pac. Rep. 849). The estate of Sarah J. Knox is solvent and unsettled, and no prejudice can result from the allowance of the claims of plaintiff and his ward. But concede that the statute relating to the filing of claims does apply, and that it is not necessary to plead the statute; still it does not appear that the claim is barred. The statute began to run from the giving of notice by the executor. No evidence was adduced of the giving of such notice. True,'we have an amended abstract, reciting that a certain proof of notice was filed in probate, but it does not appear *172that this was- offered in evidence, on the trial of the case-Judicial notice will not be taken of the fact that such a notice was given, and, .in the absence of proof as to when the notice was given, we cannot say the claim is barred, Johnson v. Barker, 57 Iowa, 32; Stewart v. Phenice, 65 Iowa, 475; McLeary v. Doran, 79 Iowa, 213; Pickering v. Weiting, 47 Iowa, 242. Brownell v. Williams, 54 Iowa, 353, is not in point. There evidence as to the giving of notice was introduced, and considered by the court. In some states it is held that the statute does not begin to' run until final settlement, and an order to pay over is made. Marlow v. Lacy, 68 Tex. 154 (2 S. W. Rep. 52). It is doubtful, however, if this is the rule in this state. Wycoff v. Michael, 95 Iowa, 559. Our conclusions on this branch of the case find some support in the following cases: Robinson v. Robinson, 22 Iowa, 427; MacGregor v. MacGregor, 9 Iowa, 65; Cassedy v. Casey, 58 Iowa, 326; Sankey v. Cook, 82 Iowa, 126; Moore v. McKinley, 60 Iowa, 367.
8 9 10 11 12 II. A guardian,’ cannot, as at comjnon law, loan his ward’s money, or invest it in securities, without an order of court. His powers are conferred by statute, and he may loan their money, and in all other respects manage their affairs, under proper orders of the court, or a judge thereof. Code, section 3200. Under this section it has been held that a guardian cannot loan the money of his ward, lease his land. or invest his funds, without an order of court. Bates v. Dunham, 58 Iowa, 308; McReynolds v. Anderson, 69 Iowa, 208; Slusher v. Hammond, 94 Iowa, 512; Reed v. Lane, 96 Iowa, 454; Garner v. Hendry, 95 Iowa, 44; Alexander v. Buffington, 66 Iowa, 360; Dohms v. Mann, 76 Iowa, 724. Such transactions made without the order or direction of the probate court, are invalid, or voidable-, at least, until approved by the proper court. As the investment in the Moench mortgage was no-t done on the order o-f the p-robate court, and as the same has never been approved, the estate of Sarah J. Kno-x is liable for the *173amount of the funds so invested. Garner v. Hendry, supra. Although there is a dispute in the evidence, we are satisfied, that the defendant Richards knew when he disposed of the mortgage that he was selling it to Mrs. Knox as. guardian, .and that he received money belonging to her ward in payment thereof. He is presumed to have known that the guardian had no authority to make the purchase, and, under the circumstances, mpst be held to hold the money received in trust for the benefit of the ward. Bates v. Dunham, supra. But Richards and Somerville both plead that plaintiff, by his laches and conduct, is estopped from enforcing his claim. When plaintiff received the Moench note and mortgage from defendant Somerville, as executor, he had no actual knowledge of the fact that they had been purchased without the order of the probate court. Acting on the assumption that the proceedings were regular, he undertook to redeem the land from tax sale as hertofore stated, and also received from defendant Richards one installment of interest on the mortgage. As soon as he learned of the fact that the mortgage had been taken without authority, he demanded and received from the mortgagors the amount paid out by him in redemption, and within a short time commenced this action to rescind the investment, and recover the money advanced to Richards by the former guardian. He did not, however, tender the eighty dollars received from Richards, but the court deducted that amount from the sum found due the plaintiff. Defendants do not plead an election. Their defense is laches and estoppel. There was no such delay after plaintiff learned of the facts as to bar him of relief. If it be said that he was bound to take notice of the transaction of his predecessor, still there was no such delay as should bar plaintiff of his right-to recover. No prejudice resulted to either defendant by reason of the delay. The delay was but little more than three years, and there has been no such change in the relations of the parties as will bar plaintiff of relief. Again, we are not prepared to say that *174plaintiff could not wait until the ward became of.age, to know whether or not she would ratify the transaction, before bringing his suit-to set it aside. But, however this may be, we do not think the defense of laches is established. One of the essential elements of an estoppel is that the party pleading it should have so acted with reference to the conduct or representations of the other as that he would suffer damage if the one who is sought- to be barred thereby were permitted to deny the truth thereof. Byer v. Healy, 84 Iowa, 7; Tufts v. McClure Bros., 40 Iowa, 317; Jamison v. Miller, 64 Iowa, 402; Wishard v. McNeill, 85 Iowa, 474. There is no evidence whatever that either of the defendants have in any manner changed position, or done anything that would re' suit in injury or damage if plaintiff is permitted to recover. If election were pleaded, or if it- be treated as embraced in the plea of estoppel, yet we think the defense is not made out. To constitute an election, there must be knowledge of the facts, and some decisive act tending to show an intent to ratify the transaction, rather than to disapprove it. "There is no- evidence that plaintiff did anything, after knowledge of the facts under which the investment was made, and evinced an election to ratify. On the contrary, he disaffirmed it, so< far as he could, and commenced this action. Without knowledge, there could be no election; and, while delay may be evidence of election, it is not conclusive. As to what constitutes an election, see Richards v. Schriber, Conchar & Westphal Co., 98 Iowa, 422; Kearney Milling & Elevator Co. v. Union Pac. Ry. Co., supra. As between plaintiff and his ward, it may be that he cannot be heard tO' say that he had no knowledge of the circumstances under which the investment was made; for it was his duty, as her guardian, tO' protect her interests. But as to these defendants no such obligation existed. They were wrongdoers and cannot be heard to say that plaintiff made an election, unless it appears that what he did, which *175is said to be evidence of an intent) to approve the invest- ■ ment, was done with knowledge of the facts. As plaintiff sues in.a representative capacity, and can do no act binding his ward’s estate without authority from the probate court, there is much reason for saying that he could not make an election that would be binding on his ward. See Cassedy v. Casey, supra; Lee v. Bank, 108 Iowa, 716; Hippee v. Pond, 77 Iowa, 235. But, without deciding this point, we think it clear that no> estoppel is proven. Moreover, there is no evidence that the note and mortgage are of any less value now than they were when purchased by Mrs. Knox. The investment of the mpney in redemption, from tax sale has been fully accounted for, and the payment of the eighty dollars in interest was made by Richards,5 and he (Richards) has had the full benefit thereof in the decree. No especial point is made on the failure of plaintiff to return or to offer to return the eighty dollars interest payment, and, as that matter is fully protected by the decree, there is no just cause for complaint. Defendant Richards is not in position to insist on a return of the money before the commencement of suit. In paying the eighty dollars he was doing no more than the law required. Hendrickson v. Hendrickson, 51 Iowa, 68; Allerton v. Allerton, 50 N. Y. 670; Triggs v. Jones, 46 Minn. 277 (38 N. W. Rep. 1113). The note and mortgage were delivered to the clerk of the court for the use and benefit of defendant Richards, and his rights thereto were fully protected.
13 14 III. Alice'M. Knox also appeals from the decree. The allowance made to her has already been stated. Had plaintiff, as her guardian, invested her money in the Moench mortgage-, there can be no doubt that she would be entitled to judgment against him for the amount thereof. As he did not do so, his responsibility is for failure to take the necessary steps to protect her interests. That he ■ did not bring suit against defendants as soon as he. *176ought may, for the purposes of the case, be conceded; but has the delay resulted in injury to his ward ? His- delay did not amount to a conversion of the property, and his liability must be predicated on negligence. Mere laches do not give the ward a right of action, unless damage results. The plaintiff now has judgment against defendants for the amount of the mortgage investment, with interest, and there is no suggestion that the judgment is not good. TIad plaintiff proceeded, immediately on his appointment, to'collect, he would have obtained no more than he has,- — -a judgment that seems to be good. If the judgment were uneol.lectible, a different question would arise. No complaint is made of the judgment in favor of intervener against the estate of Sarah J. Knox, and for the amount thereof plaintiff should have credit. Intervener also has judgment against plaintiff for the sum of one hundred and fifty-seven dollars and ninety-two cents. This was arrived at after an accounting made by the guardian, in which he was allowed certain, credits for amounts paid the ward, or for her benefit, amounting to something over seven hundred dollars. He was also allowed one hundred dollars for services, and as compensation for his attorneys. The total amount allowed the intervener is something over two thousand six hundred dollars. This is more than one thousand eight hundred dollars received by her original guardian with six per cent, interest thereon, and intervener has no cause for complaint, It is proper to say that the executor makes no complaint of the form of judgment entered against him, and we therefore express no opinion as to the validity thereof. The decree seems to be right, under the issues, and it is AEEIRMED.
