1 Ind. 193 | Ind. | 1848
Covenant, by Jacob Walker against Edmund and John T. Huff, upon a lease of real estate. Judgment below for the plaintiff. The prsecipe and writ designate Walker as “guardian of Richard and William Davis.” The declaration, which is founded upon a lease of the real estate of said Richard and William, executed by said Walker as their guardian, commenced as follows: “ Jacob Walker, who sues as guardian of William Davis and Richard Davis J &c. The plaintiff asked leave to amend by striking out the words “who sues as”; the defendant objected to its being granted. It was granted upon a
We think there was. no error in this. The contract upon which the suit was brought was one entered into with the plaintiff in his own name; though, in relation to the subject matter of his guardianship, he might have sued upon it, if indeed he could sue upon it at all, without mentioning his representative character, but such notice of that as was taken in this suit would be nothing more objectionable than surplusage. Savage v. Meriam, 1 Blackf. 176, and note.— Helm v. Van Fleet, id. 343. The point, however, is made in the case, and may as well be noticed here as elsewhere, that the lease in this case was void for want of power in the guardian to make it. The proposition is, that a guardian of the estate of an infant, appointed by the Probate Court, under our statute, cannot lease the lands of his ward. Had this case arisen since the statutes of 1843, there could have been no doubt upon the point under consideration, as they expressly invest the guardian with power, and make it the duty of the guardian to lease the lands of his ward; R. S. 1843, p. 699, s. 92; and we think the statutes of 1838 impliedly confer the same power. Section 51, p. 193, authorizes the Court to appoint guardians for the protection of the estates of minors, &c., in the counties “within which the same may be mainly situated.” Section 54, p. 194, authorizes the Court upon the application of the guardian to permit him to sell the real estate of his ward, for better investment, &c. We think these sections give to the guardian the management of the real estate of the ward. We need not, therefore, inquire into his common law power in the premises.
The only remaining question requiring examination is, whether the lessees had been so far evicted from the. premises rented, as to justify them in abandoning them entirely and setting up the eviction in bar of an action on the covenant for rent. The facts are as follows: In March, 1843, Walker, as guardian, leased to the Huffs,
After its passage John T. Huff, one of the lessees from Walker of the land and ferry on the north side of the river, and a defendant below, purchased the land on the south side of the river, and applied, under the above act, for the privilege of a ferry from the south side of the stream. The privilege was granted, and an appeal taken from the grant, to the Circuit Court, by Walker, where it is still pending. On this grant being made to said John T. Huff, he and his co-lessee from Walker, gave him, Walker, notice that, on account of having been so evicted by him, said John T. Huff, from their ferry right under the lease from Walker, they abandoned the entire premises leased. They kept the ferry in operation afterwards, under, as they claim, the license to Huff. Said Huff set up the above facts, as an eviction, in defence to this writ by Walker for rent. We do not think this shows an eviction. The Huffs were left in possession of the ground and ferry they rented. The legislature authorized an act that, being done by a stranger, might diminish the profit of their ferry. If the legislature had the power to pass
The judgment is affirmed with costs.