33 Ga. 372 | Ga. | 1862
Lyon, J., delivering the opinion.
This was a bill in equity, filed by Young J. Anderson, as the guardian of James A. Wright, against James H. Fountain, charging that Fountain had purchased from one James Taylor, the former guardian of James A. Wright, a note, belonging to his ward, on James Ross and Lucinda H. Wright, for the penal sum of $1,227 68, due one day after its date of 21st January, 1856 — that the note was payable to said Taylor, as said guardian or bearer, that said Taylor, at the time of said purchase, was on the eve of absconding from the county, and for the purpose of evading, among others, his liability for' and on account of his said guardianship, and fraudulently converting the property of his said ward to his own use, sold said note to Fountain, at the nominal sum of $120, or some other small sum ; that said Fountain bought said note with the full knowledge that it was the property of the ward, and Taylor in its sale was fraudulently intending to convert it to his own use and intended to aid and abet him in so doing; that Fountain . instituted suit and recovered judgment on the same.
The bill further charged, that subsequently, a negro woman, named Charity, had been sold at sheriff’s sale, as the property of James Taylor, and was bid off and paid for by Fountain with Taylor’s money, and that he subsequently sent said negro to Taylor.
The bill prayed an injunction as to the judgment recovered on the note, that the note should be delivered to complainant for .collection; that Fountain should pay the principal and interest due on the same to complainant, and to all which was added a prayer for general relief.
Fountain, by his answer, admitted that he bought the note from Taylor, but denied that he knew that the note belonged to him as guardian ; that Taylor was about to run away, or that he sold the note for the purpose of fraudulently converting the same to his own use; but that he made a calculation of what was due on the same of principal and interest, and deducted from the aggregate a little more, say from two to
On the trial, complainant put in evidence the depositions of William C. Taylor, who testified that Charity was sold as the property of James Taylor, and was bought by defendant with James Taylor’s money, and that the negro was after-wards conveyed to James Taylor; but whether by defendant or not, he does not know; James Taylor had left the county before the sale; was at the house of defendant on the day or the day before he left the county, does not recollect which. To this testimony defendant objected on the ground of irrelevancy. The Court overruled the objection and defendant excepted.
Complainant then introduced the depositions of Lucinda H. Wright, who testified that Fountain said, when he called on her for the money, that he had shaved the note; that the note was originally for $1,200 or $1,300, and was given by her and Ross, to Taylor, in settlement of what they had in their hands as administrators of John T. Wright.
Complainant offered in evidence the deposition of James Taylor, (the former guardian and payee of the note) — he testified that he traded to Fountain a note for about $1,200 on James Ross and Lucinda H. Wright, as administrators of John T. Wright, and when he traded it, the amount due on the note of principal and interest, was about $650, and he received between $400 and $500 — $582 of the amount due on the note belonged to him as guardian of James A. Wright, the balance belonged to him individually. The note was given about the 12th or 13th of February, 1856, and due one day after its date. Nothing was said about in what capacity
Complainant introduced James Bloodworth, who testified that he was sheriff of Wilkinson county in 1856; that he had a fieri facias in his hands against James Taylor, for $1,500 or $1,600; that he failed to find property on which to levy it, and that he returned the same unsatisfied with the entry of nulla bona; that he regarded Taylor as insolvent, at least as to what he had in the county; that Taylor, he supposed, carried off a good deal of property, and that he had some three negro fellows about Columbus, Georgia, which he tried to get hold of but failed to do so. To this testimony going to the jury defendant objected, but the objection was overruled, and defendant excepted. Here the complainant closed.
The defendant offered to prove by the sheriff that the securities of James Taylor, as guardian of James A. Wright, had paid off a judgment against them and said Taylor on the guardian’s bond of said Taylor. The Court refused to allow the proof, and defendant excepted.
The defendant then offered to prove by the securities on Taylor’s guardian bond, that they had fully accounted and paid all liabyity to the complainant in this suit. The Court refused to allow this proof, and defendant excepted.
The defendant then offered to prove by the sheriff, that the judgment or fi. fa. against said Taylor and his securities, so paid off, was in the possession of the complainant, who, it was admitted, was in the army, and that the defendant had just ascertained that said judgment was obtained in the county of Laurens, and that ho could prove its payment, and on account of his inability then to obtain an exemplification of the same, and the absence of the complainant, he moved a
Counsel for defendant requested the Court to charge, that it is necessary for the complainant to show a devastavit, or loss absolutely accruing to the complainant or his ward, before he can recover. That Taylor, (the former guardian,) was bound by his bond and his securities to the ward, all of whom complainant must show to be insolvent before he can go on an innocent purchaser of a note payable to bearer.
The Court below refused to give either of the requests in his charge, but charged the jury that “ it has been decided by the Supreme Court of Georgia, that an attorney-at-law could not convey a good title to a purchaser for a valuable consideration of a note, whether not due or past due, which had been placed in his hands for collection. I apprehend that this decision was placed upon the ground that he was a trustee. Yet the attorney is the ‘bearer of the note/ if the note contains that word of negotiability. The attorney may collect or receive the proceeds from the maker, but this power gives him no right to sell or trade off the note held in trust. This principle appears to me applicable to all trustees. The question for you to decide is, was Taylor the owner oí the note he sold to Fountain ? The copy note exhibited is made payable to bearer, but it is also made payable to James Taylor as guardian. The note is evidence of a debt, but to whom and for what ? As it is payable to Taylor as guardian, you may presume that it was the property of the ward, and given for the purchase of some property of the ward’s, sold by Taylor as guardian. If thus given, it was not Taylor’s individual property, and he had no ownership in it until he had paid or accounted with his ward for it. A decision that Taylor could trade one note which he held as trustee, will, decide that he may trade all. The consequence of such decision is to throw all redress upon his guardian’s bond. I cannot so decide. I charge you, that in law a guardian is a trustee, and that notes payable to him as guardian carry on their face evidence of the trust, and that a purchaser of such a paper must inquire into the actual ownership of such note,
The jury decreed, that the defendant, Fountain, should forthwith deliver up and assign to complainant the judgment obtained on James Ross and Lucinda H. Wright, on the note referred to in the bill, and that the defendant pay costs.
The first error complained of is the admission of the testimony of William C. Taylor, proving the purchase by the defendant of a negro woman with the money of James Taylor. This objection, if it be one, was cured by the subsequent instruction of the Court to the jury, as certified in the record, that the same was irrelevant and should be disregarded by them.
The next question made in the record is upon the refusal of the Court to charge the jury as requested by counsel for the defendant; but as the question made upon the charge given constitutes the main and controlling question in the case, and as much of what will be said upon the one applies to the other, we give the charge the precedence.
The Court charged the jury in effect, that a guardian, executor, administrator, or other trustee of like character, could not assign to a purchaser, for value or otherwise, a promissory note belonging to the trust which he represented, and if the note assigned to the defendant by the former guardian, was a paper of that description, which was not denied, the complainant was entitled to recover. We hold that this charge was erroneous.
This is his liability, and a wise and necessary one for the protection and security of the trust. Notwithstanding his liability is of this styingent character, he is obliged to keep the money belonging to his trust actively employed — it must be always invested. Besides this, he must clothe, educate and maintain his ward in a manner suitable to his circumstances and condition in life, pay all debts contracted for that purpose, and frequently it is necessary and to the interest of his ward to change the character of his investment, etc. Now if the law did not permit him to negotiate or transfer the notes, either for the benefit of the ward or to protect himself from possible or probable loss, from an anticipated insolvency of the obligors of the notes before he could secure or collect the liability, would be so unjust and harsh to the
It was the duty of the guardian to have received money instead of the note, but if he had no immediate use for the money for the benefit of the ward, and the makers were perfectly solvent, it was better to take the note, as it was an immediate and active investment, but if subsequently the guardian needed the money to relieve the necessities of the ward, or to make a more profitable investment for him, and he could not collect it until the necessity or opportunity for investment had passed, then it was proper for him to negotiate the note, and get the money in that way for these purposes ; or again, if the guardian foresaw that the makers would prove insolvent, if a collection by suit was attempted, it would be all important that he should have the power to dispose of the note to protect himself from a probable loss, or his ward from a certain one. Hence it is, that this class' of trustees have the power to sell and assign promissory notes payable and belonging to them as guardians, etc. But although they possess this power, and may exercise it at their discretion, nevertheless such securities. belong to the trust, and to which the ward or eestuis que trust have the equitable title, and if they are fraudulently diverted from their legitimate purposes, by the guardian or other person, then they may be followed into the hands of the fraudulent assignee and recovered. The purchaser is not obliged to inquire into the motives that induce the guardian to sell, and if’ he buys in. good faith, with no intention to commit a fraud on the trust, or knowledge that one is intended, he gets a good title, although the guardian, or other like trustee, intends by the assignment to convert the security-to his own use in fraud of the rights of those interested in the trust. So important
Let the judgment be reversed.