103 Ill. 142 | Ill. | 1882
delivered the opinion of the Court:
Counsel for plaintiff in error contend that it was error to permit the bond to go in evidence after it was shown that it had been altered after it was executed by McIntyre, by the insertion of the words, “and Wm. 8. Maus,” in the body of the instrument, and by adding the words, “Wm. 8. Maus, seal,” at the bottom, below the original signatures. This position is not tenable. If the judge of the county court and Maus could not lawfully do what they did, and their action was unlawful, it is clear they could not, by any unauthorized act of theirs, deprive the minor of the security which she had in the original bond, and in such case she had the right to proceed upon the original bond as though it had not been altered. If the proceeding be regarded as a regular one, authorized by law to be done as it was done, then she had a right to treat the bond as that of all the sureties named in. the bond after it was altered. This action, by the abstract, seems to have been brought against McIntyre alone. The statute authorizes this to be done.
Defendant offered, upon the trial, to prove that Alexander, on April 2, 1875, as such guardian, lent to W. S. Maus $1000 of the money of his ward, and took from Maus his note for that amount, payable thirty months after date, to Alexander, as such guardian, with interest at the rate of ten per cent, and that the payment of the same was secured at the time of the loan by a mortgage upon real estate in that county, which was of such value as to be, and was at the time, ample security for that amount, and also to prove that Mans, at the time of the loan, was solvent to an amount larger than $1000; and also offered to prove, by the oral testimony of the then judge of the county court, that the loan was made at the time with his knowledge and consent, and by his approval. The note and mortgage were produced and offered as evidence. All this proof was rejected by the circuit court, and defendant excepted. This, it is insisted, was error. At common law it was the duty of the guardian to loan the money of his ward, (not needed for the present use of the ward,) and keep it loaned at interest for the benefit of the ward. This was to fee done carefully and prudently. If the guardian kept such moneys in his possession without use, when by the exercise of ordinary care he might prudently have put the same at interest, he was chargeable with interest upon the same. If he loaned with prudence, and losses occurred, -he was not answerable for losses not attributable to his fault. Our statute, however, provides that “it shall be the duty of the guardian to put and keep his ward’s money at interest upon good security, to be approved by the court, or invest the same in United States bonds, or other United States interest-bearing securities. * * * Loans for large amounts shall be upon real estate security, * * * provided the same may be extended from year to year without the approval of the court.” Were it not for this proviso, it might be plausibly suggested that the primary provision, that the security should be approved by the court, is merely directory; but when it is said that such loans may be extended without such approval, it is necessarily implied that the original loan by the guardian must be made with the approval of the court. This being the mandatory requirement of the statute, the guardian making such loan without compliance with the statute makes the same at his own risk, and must be treated as having undertaken to assume the position of a guarantor. As such, after the maturity of the loan he may be held (in accounting to the ward) to answer for the money so loaned. Of course, on payment to the ward the guardian may avail himself of the proceeds of the loan, if any, to his own use.
The county court is a court of record, having a clerk and a seal. The proceedings of such a court can only be shown by its record, and can not lawfully be proven by parol. If such an order of approval was in fact made, but not recorded, the only remedy is by an application to that court, in apt time, and upon notice and proper proof, to 'have its record amended or completed. We think the ruling of the circuit court on this question was right. The law has thrown about the interests of wards certain safeguards, and it is the duty of courts to maintain them.
It is next objected, that before an action of this kind against the surety can be maintained, it is necessary that the account of the guardian be first adjusted in the county court, and the true balance ascertained, where the commissions to which the guardian may be entitled can only be properly adjusted. By sec. 13, chap. 103, Bev. Stat. 1874, p. 730, it is enacted, as to bonds of guardians, that where the condition of such bond shall be violated, suit may be instituted on such bond, and prosecuted to final judgment against any one or more of the sureties severally, without first establishing the liability of the principal by obtaining judgment against him alone, and in such suits it shall not be necessary to a recovery that a devastavit should have previously been established against the principal in the bond. It results from this enactment, and from sec. 21, of chap. 110, (Practice,) that in an action like the present, for the purposes of' this suit, the door is thrown open in the circuit court, upon the trial, for the adjustment of the accounts of the guardian, so as to fix the true amount of the damages.
We find no sufficient cause for the reversal of the judgment of the circuit court. The judgment of the Appellate Court is therefore affirmed.
Judgment affirmed.
