Thomas v. Burrus, 23 Miss. 550

Thomas v. Burrus

23 Miss. 550 | Miss. | 1852

Mr. Justice Ybeuer

delivered the opinion of the court.

The plaintiff in error was sued as the surety of John H. Walker, upon an alleged bond given by Walker as guardian of Virginia C. Hope. The instrument bears date on the 27th day of December, 1836, and is in the usual form of guardian bonds under the statute. Among other pleas, the defendant *556pleaded non est factum, intending thereby to question the validity of the instrument, upon the ground that the order of the probate court appointing Walker guardian, was an absolute nullity; that Walker, by virtue of that order, had no power or authority to act as guardian; and, therefore, that the defendant was not liable for any non-performance by Walker of the duties of a guardian. On the trial, the defendant below offered to read in evidence the copy of an order of the probate court of Yazoo county, made at’the February term, 1835, appointing Narcissa Hope guardian of Virginia C. Hope, approving her bond, &c. Also, an order of the same court, made at the January term, 1837, revoking these letters of guardianship ; and also an order of the same court, made at the December term, 1836, appointing Walker guardian of the minor, and approving his bond, &c. He also, at the same time, offered to prove by the clerk, and to show by the records, that the above were the only orders or decrees in said court, appointing Walker guardian, or in any way revoking or annulling the order of appointment of Narcissa Hope. The court, on motion, rejected this evidence, to which an exception was taken. *

It will be seen from this statement of the evidence rejected by the court below, that at the time John H. Walker was appointed guardian, and the instrument sued on made by the defendant, that Narcissa Hope was then the rightful guardian of the ward, by virtue of a valid, unrevoked order of appointment. This being the case, had the probate court any power to make another appointment? We think not. The act appointing Narcissa Hope guardian at the February term, 1835, exhausted the whole power of the probate court in the premises. While that appointment remained, and until the removal of Mrs. Hope in the manner prescribed by law, she had the sole and entire right to control, regulate, and manage the estate of the minor; and the order appointing Walker, under such circumstances, was coram non judice, and void. In accordance with this view, was the opinion of the. court in the case of Vicks' Heirs v. The City of Vicksburg, where the court held that the appointment of an administrator, with the *557will annexed, during the lifetime of the executor, except upon the contingencies named in the statute, was without authority and void; and that all the acts of such administrator would be absolutely illegal and void, and those of a trespasser. 1 How. R. 479. The supreme court of the United States, in the case of Griffith v. Frazier, 8 Cranch, 9, held the like rule. In Tennessee, in the case of Bledsoe v. Britt, 6 Yerg. 463, Judge Green used this language : “ Mrs. Britt had been appointed guardian of the wards, and there appeared no order showing that she had been removed. In conferring the appointment upon her, the court exhausted its power, and could not confer any right to act as guardian upon the plaintiff until the removal of the former guardian; then, and not before, the right to act upon this subject should be resumed.” The same court held in the case of Lewis v. Brooks, 6 Yerg. 167, that the grant of administration de bonis non, where all the administrators are not dead or have not surrendered the trust, is void. Indeed, it seems so clear upon principle, that authority is not needed to sustain the position, that where the power given to appoint an officer has been exercised, any subsequent appointment must be void, unless the prior incumbent has been legally removed and the office become vacant.

Inasmuch, then, as the appointment of Walker was a nullity, he had no power to exercise any act of guardianship by virtue of such appointment. He could not maintain any action for the recovery of the ward’s estate. He had no authority or right to receive any money due to it, and a payment to him by any one on such account would have been no discharge ; the rightful guardian could have compelled the party to pay a second time. Is Thomas liable, then, for any nonperformance by Walker of the duties of guardian ? Surely not. And for this plain reason, Walker had no right or authority by law to do any act as guardian ; and any act done by him, by virtue of the appointment aforesaid, was absolutely null and void.

But it is said, the recital in the instrument that Walker, as guardian, should account, &c. estops Thomas from denying *558that Walker was guardian, and his consequent liability as surety.

It is certainly true, that where a party makes a distinct and clear recital of any fact in a deed or other valid obligation, he will be estopped from denying the truth of such recital. But this doctrine presupposes a valid or legal obligation, and we do not know any authority, and reason certainly is against the position, that a party is estopped by any recital contained in an instrument from showing, that the instrument containing it is absolutely null and void. In this case, if the probate court had no power to appoint Walker guardian, and if the order of appointment was void, it had no power to take or accept the bond, and having no such power, the acceptance was a void act, and could not fix any liability on Thomas.

While this court will, in all cases, hold guardiajis and their sureties to a strict performance of their trusts, it must at the same time so administer the law, as not to impose obligations or duties upon parties where none have been assumed according to law.

Let the judgment be reversed, and a new trial awarded and the cause remanded.