197 P. 300 | Or. | 1921
“The guardian may, however, be authorized by a court of competent jurisdiction to bind his ward by a contract. In doing so, however, he is not exercising a power belonging to his office but an extraordinary power conferred for the special purpose.”
We have examined the cases cited in support of this proposition, and find them all to be suits or proceedings of equitable cognizance, attempting to fasten upon the estate of the ward, and not upon him personally, a liability for debts contracted for his benefit by his guardian. Among these cases are Reading v. Wilson, 38 N. J. Eq. 446; In re Harker’s Estate, 113 Iowa, 584 (85 N. W. 786); Owens v. Mitchell, 38 Tex. 588; United States Mortgage Co. v. Sperry, 138 U. S. 313 (34 L. Ed. 969, 11 Sup. Ct. Rep. 321, see, also, Rose’s U. S. Notes).
It could not be reasonably contended that a guardian cannot make any contract or incur any liability for the benefit of his ward. On the contrary, his duty often requires him so to do; but what we do mean to say is that, when a guardian incurs a pecuniary liability for the benefit, or on behalf of his ward, it is primarily the guardian’s contract and his liability, for which, if the expenditure is proper, he, and not the one with whom he contracts, must look in the first instance to the ward’s estate for compensation. As said by Mr. Justice Soule in Rollins v. Marsh, 128 Mass. 116, 118:
“The guardian cannot bind the person or estate of his ward by contract made by himself. Such contract binds him personally, and recovery for breach of it must be had in an action against him: Hicks v. Chap*569 man, 10 Allen, 463; Bicknell v. Bicknell, 111 Mass. 265; Wallis v. Bardwell, 126 Mass. 366. He cannot escape liability on sncb contracts by reciting that he makes them in his official capacity; and it is immaterial, in a snit brought against him thereon, whether he is described by his official title or not. The judgment in either case must be against him personally, and the description has no legal effect.”
In Trutch v. Bunnell, 11 Or. 58 (4 Pac. 588, 50 Am. Rep. 456), this court had before it a ease involving the legality of a mortgage given by the guardian, with the approbation of the County Court, to secure money borrowed and invested- for the benefit of the ward; and it was there held in the absence of a statute authorizing such obligation the mortgage was void and did not bind the ward’s estate. Mr. Justice Waldo in his opinion in that case remarked:
“The power to mortgage, as a mortgage is construed in this state, is incidental to another power— the power to borrow money. Before there can be a power to mortgage there must be a power back of the mortgage to contract the debt which the mortgage is given to secure. A power to give a mortgage to secure the payment of money without a power to borrow the money is a contradiction. Now, a promissory note simply given by a guardian, with or without the authority of the County Court, for money borrowed and invested for the benefit of the ward, is certainly void.”
“The County Court has exclusive jurisdiction, in the first instance, pertaining to a court of probate; that is * * to direct and control the conduct and settle the accounts of executors, administrators and guardians; * * to order the renting, sale, or other disposal of the real and personal property of minors.”
Elaborate procedure is provided for the sale of real property by guardians, when deemed necessary by the County Court. There must be a petition under oath showing the necessity for the sale, and an order to show cause why the sale should not be made, or, in case formal service cannot be made, the notice must be published in a newspaper for three weeks prior to the hearing. The guardian is required to give a special bond, take and subscribe to an additional oath, and to publish a notice of the sale in the manner provided for in sales by executors and administrators. Every precaution is taken to see that the sale is necessary, fair, and for the purpose of paying legitimate charges against the estate. Accordingly it has been commonly held that the property of a minor under guardianship is in custodia legis and 'is not subject to seizure and sale upon execution: Sturgis v. Sturgis, 51 Or. 10 (93 Pac. 696, 131 Am. St. Rep. 724, 15 L. R. A. (N. S.) 1034), and cases there cited; 6 C. J. 391, note 21e; Coffin v. Eisiminger, 75 Iowa, 30 (39 N. W. 124); Grant v. Humbert, 114 App. Div. 462 (100 N. Y. Supp. 44).
“The question to be decided, on the facts agreed in this case, is whether the defendant is liable in this action. If an action is maintainable against any person, it must be the defendant; for the guardian of an insane person cannot make his ward liable to an action as on his own contract, by any promise which the guardian can make. Neither can the defendant be sued in his capacity of guardian, so as to make the estate of his ward liable to be taken in execution; for the judgment is not against the goods and estate of the ward in his hands, but against himself. A creditor may sue the insane person, but shall be defended by his guardian, and in that case, judgment being against the insane person, it may be satisfied by his property.”
The case seems to the writer to be authority for the proposition that a guardian cannot bind his ward in an action at law for a contract executed by himself as guardian, which is the situation here. Whatever the authority of the probate court over the estate of persons under guardianship may have been at that time, in the State of Massachusetts, here it is exclusive, not only by the terms of the constitution, but
“Guardians of minors must prosecute and defend for their wards, may employ counsel therefor, lease lands, loan money, and in all other respects manage their affairs under proper orders of the court or judge thereof”: Comp. Code Iowa, 1912, § 647.
It should be remembered, however, that this case was begun in the probate court, and not in proceedings instituted in another jurisdiction. The case of Shaffner v. Briggs, 36 Ind. 55 (10 Am. Rep. 1), apparently supports defendants’ contention, but the statement of facts is so indefinite that it is impossible to say upon what ground the court based its opinion. It appears that a judgment had been obtained against the minor, and an execution and sale of his property had. Concerning the validity of such sale, the court announced only this not very convincing conclusion:
“Again, it is urged that the land of an infant cannot be sold on an execution against him but that his guardian must proceed to convert it into money and pay the judgment. We are of a different opinion.”
There is not a single valid reason for holding that the Circuit Court cannot invade the probate jurisdiction of the County Court, in relation to the sale of realty by executors and administrators, which does not apply with equal force to sales and contracts by guardians. The law preserves with jealous care the property rights of those who, by reason of their infancy or defect of mentality, are unable to manage their own affairs. It has selected the local court of the county as the tribunal which shall pass upon the necessity of a sale of the minor’s realty. It has given to that court the authority to say whether or not it shall be mortgaged; and the power to raise money for the minor’s benefit by mortgages does not imply a power in the guardian to bind the minor by borrowing money without a mortgage. As said in Trutch v. Bunnell, 11 Or. 58 (4 Pac. 588, 50 Am. Rep. 456), a note given for money so borrowed is void as against the minor. The case at bar disclosed the necessity for the rule. Here, the guardian, who owns adjoining land, borrows money to carry out a joint contract between a firm of hop buyers on one side, and herself, another party, and this thirteen year old minor on the other. She fails to pay the money. Neither her property nor that of her adult associate is seized, but the minor child is “left with the sack to hold,” and his property sacrificed to pay the debt;
There is no allegation in regard to the value of the rents and profits of the land while in defendants’ possession, and no claim for improvements made by defendants, so it is probable that they about offset each other. At all events, if we are to judge by the result of his guardian’s efforts in attempting to cultivate hops on the land, the plaintiff is quite as well off now as he would have been, had the land remained in the guardian’s possession.
The decree of the Circuit Court will be reversed and a decree entered here, setting aside and declaring void the judgment and sale in the action against plaintiff upon the promissory note, and also setting aside and declaring void the decree in the registration proceedings ; and the plaintiff will be decreed to be the owner in fee, and entitled to the unclouded possession of the land in dispute and will recover his costs and disbursements.
Reversed. Decree Entered. Rehearing Denied.