Woodward v. Donally

| Ala. | Jun 15, 1855

CHILTON, C. J.

The question for decision may be thus stated : — If a guardian, duly appointed by the laws of Tennessee, bring personal property of his ward (a slave) to this State, and sell it to a bona fide purchaser, can the ward, in the absence of all proof of the statute laws of Tennessee, as respects the power of the guardian to make such sale, treat such sale as a nullity, and recover the property ? The Circuit Court held the sale to be valid — that is, that the purchaser should be protected : and such is our opinion. We have seen no case which, upon common-law principles, uninfluenced by the statute law, has affirmed a contrary doctrine. On the other hand, the authorities are generally agreed, that the guardian, if not-restrained by statute, may sell the personal estate without an order of court, and the title of the person who purchases in good faith will be protected.

In Field v. Schieffelin, 7 Johns. Ch. R. 154, the chancellor (Kent) said,- — •“ Though it be not in the ordinary course of the guardian's administration to sell the personal property of his ward, yet he has the legal right to do it; for it is entirely under his control and management, and he is not obliged to apply to this court for direction in every particular case.”

In Inwood v. Twyne, Arnb. 419, Lord Hardwicke held, that ‘ guardians and trustees may change the nature of infants’ estates where it is manifestly for the infant’s benefit” ; that is, the court will sanction that which it would have ordered.

Chancellor Kent, in his Commentaries, vol. 2, p. 293, edit, of 1850, says,- — “He” (the guardian) “may sell the personal estate for the purposes of the trust, without a previous order of the court,” — citing the case in 7th Johns. Ch. Rep., supra, and Ellis v. Essex M. Bridge, 2 Pick. R. 243 ; and in a note (b) to same page, the author says : “ The sale of personal estate of the infant cestui que trust,.without a previous order in chancery, if fair, would undoubtedly be good as to the purchaser, but the safer course would be for the guardian to obtain a previous order in chancery.”

So, also, Parsons, in his work on Contracts, p.-114, says,—

“ He manages and disposes of the personal property at his own discretion, although it is safer for him to obtain the authority of the court for any important measure,” &c.

In Ellis v. Essex Merrimack Bridge, 2 Pick. R. 243, it was said — “A title under him, acquired bona fide by the purchaser, will be good, for he (the purchaser) cannot know whether the power has been executed with discretion or not.” Perhaps the dictum in Hudson v. Holmes’ Executors, 23 Ala. 589, as to the power of the guardian at common law over the personal assets of his ward, may not be, strictly speaking, correct. It impliedly concedes, however, that there may be cases where he may sell the personal property, by limiting his agency as not ordinarily extending to a sale of such property; and this is sufficient for the present case, as it was not for the purchaser to determine whether or not an extraordinary emergency demanded a sale. Ho might well have assumed tbis, since the guardian was bound to act in good faith, and was liable to his ward on his official bond, if he failed to do his duty.

There is nothing in the condition of the guardian’s bond, which forbids his making a sale of the slave, if the law, aside from the bond, did not forbid it. It binds the guardian to a faithful performance of his duties as such — to secure and improve the estate of the ward, to render on oath a true account of his guardianship, and to deliver up, pay to, and put the ward in possession of, “ all such estate as he ought to be possessed of” &c. Now, whether he ought to be possessed of these slaves, depends upon the power of the guardian to make the sale, and the validity of the purchase; which is to be determined by the rules of the common law, no statute having been shown.

We are of opinion, that applying the rules of the common law to personal property in the hands of a guardian, which, being under his control and management, passed by delivery, his sale and delivery of it to a bona fide purchaser passed the title, and the purchaser was not bound to see to the application of the purchase money. We need hardly add, that the case before us is clearly distinguishable from the cases reported in our own books, which were governed by the statutes of this State.

There is no error in the record, and the judgment must be affirmed.