68 Iowa 52 | Iowa | 1885
I. The defendant Evans was charged with failing to account for certain money and notes which came into his hands as proceeds of the sale of certain real estate. The bond in question was Evans’ general bond. The ruling of the court below that the guardian was liable, but that the sureties upon his bond were not, was doubtless based upon the rule held in Madison Co. v. Johnston, 51 Iowa, 152, and Bunce v. Bunce, 65 Id., 106. But the ruling in those cases was made with reference to the proceeds of sales made by the
When, however, real estate of the ward is sold, not at a guardian’s sale, but at a referee’s sale, made in proceedings for a partition, the case is different. There is no provision of statute that a special bond shall be given, and the sureties cannot be allowed to say that they had reason to suppose that there would be. Their liability, therefore, must be determined solely by the terms of their contract. Com. v. Loyd, 12 Phila., 221; Blauser v. Diehl, 90 Pa. St., 350. Now, when we look into their contract, we find it to be that the guardian “shall, from time to time, whenever thereunto required bylaw, render and pay to said minors all moneys, goods, chattels, title-papers and effects which may come into the hands or possession of such guardian.” It is urged by the sureties that these words are to be construed with reference to the circumstances existing at the time the bond was given, and-that, so construed, the contract could not be held to cover the moneys and notes in question, because at that time they
It is contended by the sureties that, even if such were the correct rule in case of a referee’s sale, it ought not to be applied in the case at bar, because what was set up as a referee’s sale was not such in fact, and ought not to be regarded as any sale at all. We do not deem it important to specially notice the objections urged against the validity of the sale. It is certain that the purchasers at the sale have paid their money, and the plaintiff has elected to take judgment for the same against the guardian, to whom it was paid. Under these circumstances, she would be estopped from questioning the validity of the sale, and we do not think that we would be justified in this proceeding in holding it invalid.
II. One question remains to be determined, and that is as to the amount for which these sureties are liable in this case. The judgment against the guardian was for $736.12. The penalty of the bond is $600. The judgment against the sureties might be for the amount of the penalty of the
• Reversed.