Reddin Lynch died intestate, leaving Nancy his widow, and the (137) plaintiff Elizabeth, his only shild, [child] in infancy. Administration of his estate was taken by David Bradley, and the widow intermarried with the defendant, Willie Bradley. The intestate left several negroes, and was also seized at his death of the undivided half of a tract of land which had descended to him and his brother, Hansel Lynch, from their father. After the death of Reddin, the land was divided between the plaintiff Elizabeth and her uncle Hansel, in 1827. In February, 1829, the defendant (his wife being then recently dead) was appointed the guardian of the infant Elizabeth, and received her share of the slaves of the estate from the administrator, four in number, namely, a man aged 23 years old, a girl 11 years, one 13 years, and a boy 9 years old. In March, 1829, the defendant filed a petition, as guardian, in the court of equity, in which he set forth that his ward owned the land mentioned and her share of the negroes; and that the land was of but little value and the rents very small, and that the annual proceeds of the land and negroes were too small to afford a maintenance to the infant, who had no other means of subsistence; and that it was therefore necessary that some part of her real or personal estate should be sold for the purpose of supplying the *Page 94 means of her subsistence and education; and that the petitioner believed it would be to the advantage of the infant that the land should be sold in preference to the negroes; and he therefore prayed for the sale of the land. To the petition were annexed the affidavits of the petitioner and two other persons, that they believed the facts stated in the petition to be true, and that the interest of the infant Elizabeth would be materially promoted by the sale of the land. Thereupon the court decreed the sale and appointed the clerk and master to make it upon a credit of one and two years; and to the next term, September, 1829, he reported a sale on 13 April to the defendant, at the price of $500, for which he had given bonds with approved sureties. The court confirmed the report, and ordered the master to make a conveyance to the defendant, (138) and also to deliver to the defendant, as guardian, his two bonds for the purchase money, if the master should find that the defendant had given sufficient security for his guardianship; which was accordingly done.
The defendant continued to be guardian of Elizabeth until her intermarriage with the other plaintiff, Harrison, in July, 1843.
The bill was filed in August, 1845. It states that after the death of Reddin Lynch, his widow occupied all the land until her intermarriage, and that the defendant did so afterwards until the sale above mentioned; that immediately after his wife's death the defendant conceived a strong desire to own plaintiff's land, and that, with that view, he filed the petition, and that the reasons set forth therein for the sale were frivolous and untrue pretexts; that the land was worth from $1,200 to $1,500; and that the defendant took active pains to depreciate it by decrying its value, and also to suppress competition in the bidding; that the defendant applied to respectable persons who were resident in the neighborhood and knew the land and its value, to join in the affidavits annexed to the petition and they refused; and that he then procured the two other persons to make the affidavits, who were of easy and accommodating dispositions, and resided, the one 4 and the other 6 miles from the land; that during the time the defendant occupied the land he permitted the buildings and inclosure to go to waste, and thereby diminished the market value of it; and the bill distinctly charges that the intent and purpose of the defendant in procuring the sale of the land was to purchase it at a sacrifice, and that it was for that reason that he did not inform the court, upon the coming in of the report, of the inadequacy of the price, and thereby protect his ward from undue loss. The bill also alleges, as a breach of his duty, that the defendant procured the report to be confirmed and an order for the payment of (139) the price into his hands, as guardian, and designedly omitted to *Page 95 cause it to be secured to any specific use or purpose, and a portion of the negroes to be set apart as a substitute for the land sold.
The bill further states that the defendant seldom hired out the plaintiff's slaves, but kept them in his service, and would not account for the full value of their services; that the plaintiff Nicholas applied to the defendant for a settlement of his accounts as guardian; but that he refused to come to any settlement, and in February, 1844, paid the sum of $55, and soon afterwards $10 more, and alleged that those sums were all that was due upon his guardianship, including the hires of the negroes and the rents of the land before the sale and also the price of the land.
The bill then insists that in justice and equity the land should be considered as still belonging to the plaintiff Elizabeth, and that the defendant ought to be considered a trustee for her; and if that be not so, that at all events the proceeds of the sale of it ought to have been secured to her, and that the defendant ought to make the same good to her.
The prayer is that the purchase of the land may be declared fraudulent and the defendant be decreed to convey to the plaintiff Elizabeth, and for an account of the rents and of the land, and also of the personal estate, and that all sums that Mrs. Harrison may be entitled to in respect of the sale of the land may be settled and secured to her out of the fund in the defendant's hands.
The answer denies that any waste was permitted by the defendant on the land, or that his wife or he ever occupied it. It states that there were no improvements on it, except some detached pieces of cleared land, containing in all about 17 acres, very badly inclosed; that in 1828 the defendant leased those pieces for $3; of which he kept $1, in respect of his wife's dower, and accounted for the other $2 as part of his ward's estate; that immediately after he was appointed guardian, (140) in February, 1829, he offered the land for rent; but that owing to there being no house on it, and the poverty of the land, and the defective fences, he could get no offer for it. Believing that he would afterwards be unable to get tenants, knowing that there were debts encumbering the personal estate, he thought it best that the land should be sold rather than keep it lying idle and paying taxes on it during the long minority of his ward, who was then about 3 years old; and accordingly, and with the sole view of promoting her interest, he consulted counsel and was advised to apply to the court of equity for an order to sell it, in aid of the personal estate. The defendant denies positively that he used any practices to impose on or deceive the court, or that he applied to or procured any persons to give evidence in support of the application, but such as he believed knew the land well and were good judges *Page 96 of what was for the interest of the ward. He states that he did not wish or intend to purchase the land when he filed the petition nor when it was offered, but that, finding no bid made, and supposing that if any should be made, it would be small under those circumstances, and being determined the land should not be sold at a sacrifice, he made up his mind to give the value of it himself, as well as he could ascertain it, and therefore he bid $500; that he was not particularly acquainted with the land; but he had ascertained that the other half of the original tract, being the share of Hansel Lynch, had been a short time before sold for $500, and supposing him to know the land well and to be a competent judge of its value, he bid the same sum for the other half, considering, then and now, that to be its full value; that the defendant was desirous not to purchase the land, and that the master kept the bidding open until the succeeding county court, but, receiving no (141) other bid, he then declared the defendant the purchaser.
The answer thereupon insists that the defendant by force of the decree and conveyance from the master had a good title to the land; and, moreover, that as the decree directed the money to be paid to him as such, and without any settlement of any property in lieu of the land, he is not chargeable with any error in law upon that point, as it was not his act, but that of the court.
The answer then states that the defendant annually returned his accounts as guardian to the county court, and included therein all the hires of the negroes and the price of the land, with the interest accruing thereon, and the same were duly audited and allowed by the court. It denies that the defendant kept the negroes in his service, and avers that he accounted for the whole estate in his returns. A copy of those accounts is annexed to the answer as a part of it, and the original of the last one, made to May, 1844, is exhibited. The answer then states that soon after the marriage of the plaintiffs, he was requested to settle, by the plaintiff Nicholas; and the defendant thereupon gave him a full statement of all his transactions, by laying before him his said guardian accounts and vouchers to support them; and that after time taken for full examination, the said Nicholas expressed himself fully satisfied therewith; and the defendant then delivered to him the negroes belonging to his wife, and after first paying him $55, in February, paid him on 25 May, 1844, the sum of $10.92, as the balance due on the last account, and took his receipt therefor on the account in full; and the answer insists on that settlement of the accounts and the plaintiff's receipt thereon as a bar to a decree that he shall now account, as if he had pleaded the same.
The accounts began in February, 1829. It appears by them that the ward's estate was indebted at that time $202.22 1/2 for owelty of partition *Page 97 of the land between herself and her uncle, and of the negroes (142) between herself and the defendant, and for her share of a balance due her father's administrator on his accounts; and that the defendant, afterwards, was obliged to pay Reddin Lynch's administrator, on a refunding bond, the further sum of $238.01 for her share of a recovery effected against him. The hires of the negroes appear to be regularly entered, and to have barely supported the ward for several years, though they gradually increased, notwithstanding the charges also increased by reason of one of the negro women having a large family of young children, and the expenses of the ward's education. The defendant gave the ward credit in the account for $500, as the price of the land, when it fell due; and there does not appear any charge in the account that does not seem quite moderate for the expenses of the negroes, or the board, education, and clothing of the ward. In the return in May, 1844, the defendant is charged with the balance due upon the preceding return, and it appears upon the original that it (as the others had been) was credited and allowed by three members of the court, who signed it. Therein the plaintiff is charged with $55, paid to him in February, 1844, and a balance is struck of $10.92, and signed by the defendant; and immediately below the plaintiff gave a receipt as follows:
25 May, 1844. Received the above amount as stated from Willie Bradley, guardian of Elizabeth R. Lynch, in right of my wife, now Elizabeth R. Harrison.
N.C. HARRISON.
Depositions were taken on both sides as to the value and condition of the land. It appears that the share of Hansel Lynch was sold by him at $500; and several witnesses think that a fair price for that lot as well as for the land of the plaintiff. Others, however, say that both parcels were worth more; and upon the whole evidence it seems probable that the land of the plaintiff was worth about $600, or (143) $650, though it could not be sold for that sum, because it did not adjoin any person desirous or able to buy it. But all the witnesses agree that but little of it was cleared and the most of it in swamp; so that little or no rents could be had for it, without laying out capital or labor to a considerable extent in clearing and ditching.
Upon the hearing in the Superior Court the bill was dismissed, but the decree did not declare the grounds of it, and the plaintiffs appealed. The Court finds no reason for disturbing the decree. In respect of the personal estate, the plaintiffs cannot have any decree against the defendant. The negroes, with their numerous increase, have been delivered to the husband, and he has also settled the accounts with the guardian and received the balance due on it, and given a receipt for it as such. It is not necessary to cite authorities that an account stated in writing, and settled, and signed by the parties, is a bar to a bill for another account. If the plaintiffs state the settlement in the bill, they cannot ask to have it opened, but for some fraud, omission, or mistake pointed out. If the bill take no notice of the settlement, but is simply for an account, in a case in which a bill for an account lies, it follows that the defendant can adduce the settlement and show thereby that the parties have already accounted, and therefore ought not to be compelled to do so again. The difference is, that when the defendant sets up this defense, the rule is that he must state upon his oath that the account as settled is just and true; and in that case it is conclusive, unless impeached upon one of the grounds mentioned; for fair settlements, (144) like other contracts, ought to be binding. Here the accounts were stated, signed and settled, and there is nothing to impeach them; for the bill does not even notice the settlement. The final account refers, upon its face, to those before returned, and they must have been known to the husband. The defendant says that he in fact had them and examined them carefully; and he further states positively, that the whole account was just and true. There is no ground, therefore, on which that settlement can be disregarded.
The Court cannot forbear expressing a decided disapprobation of the loose and mischievous practice adopted in this case, of decreeing the sale of an infant's land upon ex parte affidavits offered to the court, without any reference to ascertain the necessity and propriety of the sale, and the value of the property, so as to compare the price with it. The court ought not to act on mere opinions of the guardian or witnesses, but the material facts ought to be ascertained and put upon the record, either by a report of the master or the finding of an issue; and after a sale it ought to appear in like manner to be for the benefit of the infant, to confirm it. Otherwise there is great danger of imposition on the court and much injury to infants. In the case before us, if it were admitted that the ward lost by the sale of her land, it is not seen that the guardian did more than err in opinion as to the infant's interest; for the facts stated in the petition do not appear to be untrue, and there is no evidence of an effort to prevent competition at the sale or before. The only prejudice alleged in the bill is that the land was sold too low. On that point the guardian or the witnesses made no representation. It was incumbent on the court to direct an inquiry as to *Page 99 the suitableness of the sale at the price, taking into view the income from the land, the ward's age, and the condition of her estate. Certainly, a guardian is not to answer for error in the court in those respects; for he cannot undertake to set himself above the court, whose advice he asks. To make him responsible, if he be so at (145) all, for a loss to the ward, something more than a loss and an error of a court must be made to appear. It ought, at least, to be established that he practiced a deception on the court by false allegations and false evidence, or by industriously concealing material facts. However, it is not our purpose at present to lay down any rule as to the liability of guardians for losses to wards from sales of their land. It will be sufficient to do so when a case of such injury shall come up. The plaintiffs do not establish anything like a previous design of the defendant to buy the land, and they fail to render it even probable that it was not the ward's interest to confirm the sale that was made, rather than not make one at all. It is true, there is some difference of opinion about the value of the land. But suppose it to be worth $600, or a little more, there would still not be such disparity between the price and value as would induce the Court to annual a contractinter partes. This case stands on ground even higher than that. The right of rejecting the sale is reserved to the court; but instead of doing so, it confirms it, and thereby holds the purchaser bound. It would be hazardous to impeach confirmed judicial sales upon the ground of inadequacy of price; and if it can be done in any case, it must undoubtedly be a very strong one of deceitful practice on the court. Without commenting minutely on the evidence here, it will be sufficient to say that it produces a decided impression that, under the circumstances, it was the interest of the ward that the sale should have been made at the price given, rather than not sell at all; and that, even if the land were worth more intrinsically, it is not probable, owing to its condition and situation, that more could have been had for it in any reasonable time. The proceeds of sale were almost indispensable to the infant, in the state of her property. The land yielded no profits, and would not, without an outlay beyond the power of the owner. If not sold, it (146) would have been chargeable for taxes, and at the end of her pupilage would still have been in a wild and waste state. On the other hand, it has yielded $500, and compound interest thereon for about fourteen years — altogether, upwards of $1,100. Besides, there were debts, then due, exceeding $200, and others, afterwards ascertained, to a greater amount; and for the discharge of them, and the education of the ward, there was nothing but the negroes. During the same period they have yielded above $1,500 in hires, and have more than doubled in number. So that it is plain that she would have suffered more loss by a *Page 100 sale of negroes for the payment of her debts, besides being cut off from resources for nurture and education. The Court, therefore, must declare that the sale of the land was not procured by the defendant in bad faith, but that, under the circumstances, it was a discreet and proper act.
The bill also insists on a liability of the defendant, because he did not keep and have settled on the plaintiff, Mrs. Harrison, as much of the personal property as would have been of the value of $500, to go as real estate. This is founded on the provision of the act of 1827, which requires the court to set apart as much of one kind of property as will be a substitute for that of the other kind sold, and enacts that the portion set apart shall go as that sold would have done, until the equitable owner shall make a disposition of it that will change its character. No doubt it was the duty of the court of equity to have complied with these provisions. Perhaps, also, the guardian might have withheld as much of the personal property from the husband of his infant ward, and insisted on its being settled as real estate. It is not necessary to say how that would be, as it is not the question here. The question before us is whether the husband, by joining his wife with him, can bring a bill to compel the guardian to make good this sum out of his (147) proper goods, when the husband has in his own hands the whole estate out of which the settlement ought to be made. Undoubtedly, that much of the personal estate is, or ought to be, considered as land, between the husband and wife and between her personal representative and heir. Why does not the husband set up a sufficient fund and settle it for that purpose? If he will not, the wife has a right to insist on it by her bill, fixed by a next friend. But, clearly, they cannot charge the present defendant with that sum, when he delivered the whole estate to the husband, and he now has it. Whether he could be made liable by the wife, upon the insolvency of the husband, may admit of more doubt; though it would seem hard that he should, as the court omitted to designate a fund for the purpose. But if he could be reached by the wife ultimately, he assuredly cannot be on the bill of the husband and wife, and while the husband has the fund itself, and is, in respect thereto, the person primarily liable.
PER CURIAM. Decree affirmed, with costs.
Cited: Henderson v. Palmer, 57 N.C. 109; Morton v. Lea, 73 N.C. 23;Blue v. Blue, 79 N.C. 71; Grant v. Bell, 87 N.C. 44; Suttle v. Doggett,87 N.C. 206; In re Dickerson, 111 N.C. 113; Barcello v. Hapgood,118 N.C. 726. *Page 101
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