Patty v. Williams, 71 Miss. 837

71 Miss. 837 | Miss. | 1894

Campbell, C. J.,

delivered the opinion of the court.

The voluntary grantees of Ames, one of the obligors on the official bond of B. C. Patty, on whom the guardianship, of the minors was devolved in accordance with law, were proper parties to this suit, brought by the former wards to recover of their former guardian and his sureties for performance of official duty their estate in his hands, and to. fasten liability for the result of the accounting sought on his sureties. It is true that the donees of Ames, one of those sureties, were not on the bond, and are not his personal representatives ; but he is dead, and they are in possession, by virtue of conveyances from him; voluntarily made during his liability on Patty’s boud, of all his property, and they are proper parties on the principle announced in the following cases: Vanwinkle v. Smith, 26 Miss., 491; Garner v. Lyles, 35 Miss., 176; Ellis v. McGee, 63 Miss., 168, and illustrated by Buie v. Pollock, 55 Miss., 309; and, since a voluntary conveyance by a debtor of all his property is fraudulent in legal contemplation, we fail to see why a creditor of a debtor who makes a voluntary conveyance of all he owns may not invoke the benefit of § 503, code 1892, and, on this ground, the voluntary grantees of the surety, Ames, were properly made parties.

The state of Mississippi is not a necessary party to such a. bill. It cannot be made a defendant. It has no interest in the subject or object of the suit. No judgment that can be rendered can affect it, and its being a party to the suit is not matter of concern to the defendants. There is, therefore, no-principle on which it can be held that the state should be a party. If a party, it would be a formal and nominal one, made such for no purpose, and accomplishing nothing. True, the general rule is that the holder of the legal title must be a party, so as to conclude the legal title by the decree. That is because the holder .of the title might assert it in another suit, but the state could never be heard to assert any claim on the matter involved in this suit, and a decree in this suit would protect the defendants against any demand on the bond 'to the extent covered by the decree. The- state is the obligee in the bond, but it has made the bond a security for others who are entitled to resort to it as a means of satisfaction of their demands. The bond is mere inducement, used to show who are liable, and howto respond to the demand of complainants. At law, because of its regard for forms, the action would be in the name of the obligee in the bond for the use of the real parties in interest. Equity rises above such fetters, disregards merely useless forms, and looks only to substance, and, hence, requires only those to be parties who have some concern in the litigation or whose presence is required to do complete justice between the parties; and, tested by this rule, the state is not a necessary party.

The learned counsel for the appellants have not claimed that the state is a necessary party on the general rules of chancery procedure, but put the claim on the language oí the statute requiring official bonds, which provides for them to be “ made payable to the state, and shall be put in suit in the name of the state for the use and benefit of any person injured by the breach thereof.” Code 1892, § 3056. We do not regard the language quoted as intended to prescribe a formula for suits, or to do more than to declare that such bonds shall be held by the state as a security for all injured by their breach. The expression used may have been suggested by the fact that, when the statute was originally framed, all suits on such bonds, as now most of them are, were brought iu courts of law, where literally the direction of the statute is observed, and suits are brought in the name of the state for the use, etc.

The statute under which the clerk of the chancery court may be made guardian, declares that his official bond shall cover his liability as guardian, and it says nothing as to how suit shall be brought to enforce this liability. Another statute gives the right to resort to the court appointing a guardian to enforce the liability of obligors in the bond, which stands as security for the rights of parties. Counsel admit the jurisdiction of the court in this ease, and complain only of the procedure, .and, believing that to be free from any valid objection, the decree will not be disturbed on that account.

The point that the administratrix of the deceased guardian has filed accounts of the guardianship, and they have been excepted to and are pending, is not available as an objection to this suit. That is a suit, as it were, by the personal representative of the deceased guardian against his former wai’ds, while this is a suit by them not only for an account of their estate in the hands of their guardian, but with the further object of reaching the obligors on the official bond of the guardian, and obtaining satisfactibn of the decree sought. A final decree on the suit of the administratrix of the guardian might settle the sum for which -the guardian was liable, but nothing more, and the pendency of that presents no ground of objection to this. Even a final decree in the accounting by the representative of the guardian would be only prima facie and not conclusive against' his sureties, which furnishes another sufficient answer to the objection that this suit is premature.

The demurrer was properly overruled, and the decree is affirmed, with leave to answer in thirty days after mandate filed in the chancery-court as of. last term of said court.