71 Ind. 154 | Ind. | 1880
This was a suit by the appellee’s relator, against the appellants, on an additional guardians’ bond given to secure an order for the sale of real estate.
The bond was in the penal sum of three thousand dollars, was payable to the State of Indiana, and was sealed and dated the — day of-, 185-, by David Hurlburt, John Dunning and Chester Spafford. The condition of the bond was, “ that as the above bound David Hurlburt and John Dunning, as guardians of the minor heirs of George Eaton, deceased, have been ordered by the court of common pleas of Porter county to sell the real estate of said heirs: Now, if the said David Hurlburt and John Dunning will faithfully discharge the duties of their said trust according to law, then the above obligation is to be void, else to remain in full force in law.”
The cause, having been put at issue, was tried by the court, and a finding was made for the relator, and against both appellants; and the said Hurlhurt’s motion in arrest of judgment having been overruled, and his exception duly saved to this decision, the court rendered judgment in accordance with its finding, from which judgment this appeal is now here prosecuted.
In this court, the appellants have separately assigned errors, which call in question the sufficiency of the relator’s complaint, upon their separate demurrers thereto; and the appellant Hurlburt has also assigned, as errors, the decisions of the circuit court in sustaining the relator’s demurrer to the fourth paragraph of his answer, and in overruling his motion in arrest of judgment.
The relator’s complaint contains a curious and an anomalous statement of facts. It appears therefrom, that on the 8th day of December, 1855, the appellant John Dunning was appointed and qualified as the guardian of the person and estate of the relator, Willis Ault, as the infant heir of one Julia A. Eaton, deceased, by the court of common pleas
The relator further alleged in his complaint, that, on said 22d day of January, 1856, the appellants Dunning and Hurlburt filed in said court of common pleas their joint petition for an order authorizing them to sell the said interests of their respective wards in said real estate; that said court made an order for the sale of said real estate, and, on the 14th day of March, 1857, the said Dunning executed his bond, a copy of which was filed therewith, in the sum of three thousand dollars, to the approval of said court, conditioned for the faithful discharge of the duties of his trust, in regard to the sale of said real estate; that said David Hurlburt and Chester Spafford executed said bond, together with said Dunning, and that said bond was conditioned that each of the said obligors should be liable jointly and severally, in case the said Dunning failed to faithfully discharge the duties of his said trust.
On the 1st day of July, 1857, as the relator further averi’ed, the said Dunning sold the i’elatoi’’s interest in said real estate, and received therefor about two hundred dollars; that, on the 25th day of January, 1867, the said Dunning was, on petition, removed from his trust as the guardian of the relator, Willis Ault; that the said Dunning had at all times failed and x’efused to account for and pay over the proceeds of the sale of the relatox’’s interest in said real estate, and had converted the saxne
The question for decision, presented by the errors separately assigned by the appellant David Hurlburt, maybe thus stated: Does the relator’s complaint in this case state facts sufficient to show, that the said Hurlburt is, or ought to be, liable on the bond in suit to the appellee’s relator, for the proceeds of his real estate, sold and received by the said Dunning as his guardian?
There is some conflict between the allegations of the complaint, in regard to the bond in suit, and the copy of the bond therewith filed. It would seem, from the allegations of the complaint, that the appellant Hurlburt was the surety of the appellant Dunning, in the bond in suit; but the copy of the bond, filed with the complaint, shows upon its face that both Dunning and Hurlburt were principals therein. Where such a variance exists between the description of the instrument sued upon, in the complaint, and the copy of such instrument filed therewith, the rule may be regarded as settled in this court, that the copy will control, and will be presumed to be right, until the contrary is shown. Mercer v. Hebert, 41 Ind. 459; Stafford v. Davidson, 47 Ind. 319; Crandall v. The First National Bank of Auburn, 61 Ind. 349; and Cotton v. The State, 64 Ind. 573.
The complaint does not show, that any of the relator’s money or property ever came into the possession of the appellant Hurlburt; hut, on the contrary, it charges explicitly, that the appellant Dunning alone received the proceeds of the sale of the relator’s real estate. Hurlburt was the guardian of the heirs at law of George Eaton, deceased ; but it is not claimed that the relator was one of these heirs, although it was recited in the condition of the bond, that both Hurlburt and Dunning were “guardians of the minor heirs of George Eaton, deceased.” In his
Thus regarded and construed, the bond in suit was subject to the condition, in so far as the appellant Hurlburt was concerned, that he would faithfully discharge the duties of his trust, as guardian of the minor heirs of George Eaton, deceased, according to law. In his complaint, the relator alleged, as we have seen, that he was an heir, not of George Eaton, but of Julia A. Eaton, deceased; that Dunning was the guardian of his person and estate ; and that Hurlburt was the guardian of the persons and estates of the minor heirs of George Eaton, deceased. It was not alleged in the complaint, that the appellant Hurlburt had committed any breach whatsoever of the
Eor the reasons given, we are of the opinion, that the relator’s complaint did not state facts sufficient to constitute a cause of action in his favor, as against the appellant Hurlburt; and that the court clearly erred in overruling said Hurlburt’s demurrer to the complaint, and his motion in arrest of judgment.
But we are of the opinion, that the court committed no error in overruling the demurrer of the appellant Dunning to the relator’s complaint. Under the provisions of section 790 of the code, the bond in suit was legalized and made valid and effectual, as against the said Dunning, notwithstanding the alleged mistake therein. This is settled by many decisions of this court. The State, ex rel. Wyant, v. Wyant, supra; Stevenson v. The State, 69 Ind. 257; Stroup v. The State, 70 Ind. 495 ; Stevenson v. The State, ante, p. 52.
The judgment against Dunning is affirmed,' at his costs; and the judgment against Hurlburt is reversed, at the relator’s costs, and the cause is remanded, with instructions to sustain said Hurlburt’s demurrer to the complaint, and for further proceedings, not inconsistent with this opinion.