4 Md. 352 | Md. | 1853
delivered the opinion of this court.
At the time the transfer or cancellation of the stock or obligations in question took place, the act of 1843, chap. 304, was in full force. By that act it is provided that, “it shall not be lawful for any guardian, to sell any property of his ward, without an order of the orphans court, authorising such sale or removal, and any sale made without an order of court shall be void, and no title shall pass thereby to the purchaser.” No order was passed authorising the sale or transfer in the present instance, and consequently it was void, and the rights of the plaintiff were not affected by the transaction ; this court regarding it as a sale or removal within the meaning of the act.
The remaining question then for us to determine is, can the plaintiff under the present proceeding, remedy the evils which have resulted from the illegal act of his guardian of which he complains ?
The record discloses the facts, that at the time this suit, (which is an action of trover,) was instituted, the plaintiff was an infant, under twenty-one years of age, and that Daniel Sprigg, Esq., was his guardian, duly appointed and qualified as such ; and we are therefore asked to decide whether, under such circumstances, the guardian and not the infant was not the proper party to sue in the present action.
As a general rule we concede, that in order to support the • action of trover, the plaintiff must show, not only that he had at the time of the conversion, a property in the chattel either
Under the statute of West., 1, 3 Edw., 1, chap. 49, and West., 2, 13 Edw., 1, chap. 15, an infant can sue by prochein ami in all cases where his rights have been invaded, and the only ground for questioning the right in the present case, is based upon the hypothesis that the possession of the chattel in dispute, which is the gist of the right to sue in trover, belongs exclusively to the guardian and not to the infant. In this view of the case we do not concur. For the purpose of sustaining the action of trover, we regard the right of possession as common to both the guardian and infant, the right in the first instance, resulting from the special property in the chattel by virtue of the guardianship, and in the second from the genera] and absolute property in the real owner. The possession, or right of possession in the one, is the right of possession of the other, as against third parties or strangers. In the case of a general as well as a special property to the same chattel in different persons, the action of trover may in most cases, be brought either by the general or special owner, but a judgment obtained by one, is a bar to an action by the other. 7 Cowen, 328, Smith vs. James.
In this State in the case of Hay vs. Conner, 2 Har. & Johns., 347, the right of an infant to sue in trover, has been directly recognized by our Court of Appeals. It is true the particular point does not appear distinctly to have been raised in the argument, though expressly decided, nor does it appear in that case, that the infant had a guardian duly appointed under the act of 1798. It is to be presumed that if a valid objection did exist to the right of the infant to sue in that case, that it would have been discovered and pressed in argument by the counsel, and would have been considered in the learned opinion delivered by the court below. Nor do we think it a material circumstance in the case, that there was no guardian in existence appointed under our act of Assembly. The mother, the natural guardian, was before the court, who in the absence
While we have not been able to find a case in all respects in point to the present question, we have nevertheless discovered, in other States, a number like the case of Hay vs. Conner, where an infant has sued both in trover and replevin, although it is true, in those cases the fact was not disclosed whether there was a statutory guardian or not. In the case in 11 Vermont Rep., 273, the right of the infant to sue, in assumpsit, for a legacy, was established, although there was a regular guardian in existence at the time.
The foregoing question, though not directly raised by the prayers offered below, is nevertheless presented by the pleadings and proof, and has been pressed upon us in argument, and as it strikes at the very root of the plaintiff’s case we have thought proper to dispose of it.
If this were a case where demand and refusal were necessary to support the present action, the plaintiff’s first prayer would clearly have been incorrect, because it requires the jury to find a refusal, and of necessity a previous demand, when in fact there is not the slightest evidence in the record to show that there had been either. But, as we shall presently show, as this was not a case requiring demand and' refusal, the objection mentioned above would not be regarded as a legitimate ground upon which to reverse the judgment below, because the question submitted to the jury, whether proved or not, was wholly immaterial: and in submitting that question to the jury the plaintiff rather prejudiced his own case than that of the defendant, and therefore the latter has no just ground to complain. We have no hesitation, however, in saying, that demand and refusal were not essential to the plaintiff’s case, and therefore that question, in strictness, ought not to have been submitted to the jury in any form.
We have already said, the sale or cancellation of the plaintiff’s stock or bonds, by Jones, his former guardian, and the
The granting of the appellee’s second prayer by the county court was erroneous. There being no evidence adduced at the trial below as to the market value of the bonds or stock in dispute, it was clearly improper for the court to have submitted to the jury to find what said certificates or bills obligatory would have brought in the market at the time they were delivered up to be cancelled.
The only evidence before the jury as to the value of the bonds, was the bonds themselves. From them clearly no legal inference could be drawn with reference to their market value. They proved, it is true, their par value, but the par value of a public or private security is no index of its market value, and the very circumstance of having asked the jury to find the market value was conclusive that it varied from the par value.
It is clear to our minds that the conclusions of the jury upon that subject, must of necessity have been based upon mere speculations, and not upon proof properly in the cause, and was therefore manifestly erroneous. Insurance Company vs. Wilson, 2 Maryland Rep., 217.
For the defects contained in the appellee’s second prayer which we have pointed out, we shall reverse the judgment of the court below.
Judgment reversed and procedendo awarded„
