I concur in the general result announced in the opinion of Mr. Justice Carter as follows:
(a) That the plaintiff is entitled to judgment against the defendant United States Fidelity Guaranty Company and against the administratrix of the estate of Samuel E. McFadden, for $8,999.82, with interest at 7 per cent from January 1, 1925.
(b) I do not agree that the executrix of the Brice will had the legal right, by turning over the unadministered assets of the guardianship estate in the hands of Brice at the time of his death, ipso facto, to discharge the Brice estate from all obligations under the guardianship bond.
(c) I think that the Surety Company is estopped by its conduct from denying the validity of the transfer of the unadministered assets just referred to, and is not entitled to indemnity from the Brice estate for what it may have to pay upon the bond.
(d) I do not agree with the conclusion of Mr. Justice Carter, that from the fact that McCluney conveyed the legal title of the McCluney tract to the joint guardians, McFadden as the surviving guardian held such an absolute fee-simple title as enabled him, without an order of Court, to convey a fee-simple title to the Andersons; on the contrary, I think that both the acceptance of a deed from McCluney *Page 554 in satisfaction of the mortgage which he had given to the guardians, and the execution of the deed from McFadden to the Andersons, both transactions having been consummated without the authorization of the Court, were entirely irregular and could have been overthrown by the ward, but that her action is a confirmation of both, and that the surety company has no right to complain if as a fact the mortgage has been fully accounted for by Brice. For these reasons I do not think that the surety company is in a position to object or to seek indemnity from the Andersons; but that the title of Anderson is good.
This is an action upon a guardianship bond, signed by Samuel E. McFadden and A.G. Brice, guardians of the plaintiff, Coralie Means (now Andrews), a minor, as principals, and the United States Fidelity Guaranty Company (hereinafter for convenience referred to as the "Surety Company"), as surety, in the sum of $15,000.00. The bond is in the usual form, dated January 29, 1913, and was followed by the appointment and qualification of the guardians.
It appears that the guardianship estate consisted of funds derived from the sale of certain real estate, rents, a legacy, and a judgment, amounting in total to $10,295.62, and that from the time of his appointment in January, 1913, to the time of his death on January 30, 1918, the estate was handled judiciously and honestly, practically exclusively, by the guardian Brice, who made annual returns to the probate Judge of receipts and disbursements for the years 1913 to 1918, both inclusive.
Brice died, as stated, on January 30, 1918, and on September 11, 1918, the executrix of his will, Sallie M. Brice, turned over to McFadden, the surviving guardian, all of the securities constituting the estate, amounting to $10,295.62, which had been in the hands of Brice at the time of his death and took McFadden's receipt therefor. This action on *Page 555 the part of the executrix was without Court procedure or notice to either the ward or to the bond company, surety.
After the death of Brice no annual returns were filed by McFadden. On August 6, 1924, the ward became of age and made a demand upon McFadden for an accounting and settlement, which she was unable to obtain.
On January 6, 1925, McFadden died without having made an accounting and without having paid the ward any part of the corpus of the estate, except so far as it may have been trenched upon by the excess of disbursements over income.
The present action was instituted originally on June 2, 1926, against the Surety Company and Mary G. Sledge, administratrix of McFadden's estate; the plaintiff alleging the facts substantially as set forth above and asking judgment for $9,829.45 as the amount due her, with interest from January 1, 1925. Thereafter on July 30, 1926, upon motion of the Surety Company, the executrix of the will of Brice was made a party defendant.
The Surety Company answered taking the position:
"That this defendant is not a principal on said bond and is only a surety for the co-principals, A.G. Brice and Samuel E. McFadden. That this defendant is informed and verily believes that the estate of A.G. Brice is abundantly solvent and able to pay in full any liability arising from the breach of said bond. That each of said principals and their personal representatives are liable for the full amount due the plaintiff by reason of any breach of said bond by the terms of the application for said bond. And that by signing the application of date January 20th, 1913, the said A.G. Brice made himself liable for the entire amount due said ward by reason of said guardianship or under the terms of the bond, on account of the following agreement in the application:
"`To indemnify and save the said company harmless from any and all loss, costs, charges, suits, damages, counsel *Page 556 fees, and expenses of whatever kind or nature, which said company shall or may, for any cause, at any time, sustain or incur, or be put to, by reason or in consequence of said company's having executed said bond.'"
The defendant executrix answered in substance:
"(1) That A.G. Brice and S.E. McFadden, as guardians had faithfully and fully performed their duties and made annual returns each year, which were approved by the probate Court and that there was no default during the life of A.G. Brice. (2) That on the death of A.G. Brice, his duties and liabilities terminated, and that S.E. McFadden became, by law, entitled to the sole control and possession of the assets in her hands, which were turned over to him by her, and that S.E. McFadden took sole control and possession thereof and executed his receipt to her for the assets in her hands and that the estate of A.G. Brice was entitled to a discharge as a matter of law and fact by reason of the settlement in full and payment of the assets to the surviving guardian. (3) That the United States Fidelity Guaranty Company knew, or should have known, of the death of A. G. Brice, and thereafter continued its liability on the bond of S.E. McFadden as sole surviving guardian, and waived any and all claims or demands against the Estate of A.G. Brice; and continued to act as surety for S.E. McFadden as sole surviving guardian, and to collect and demand premiums on his bond, and neglected to require annual returns from S.E. McFadden, and thereby by its negligence became liable for the defaults of S.E. McFadden. (4) That the application of A.G. Brice to the United States Fidelity Guaranty Company was the personal, separate and distinct undertaking on his part for his own fidelity under the bond as surety; A.G. Brice's estate was fully released and discharged, and that his estate is not liable under the said application, which is without consideration and did not bind him as surety for S.E. McFadden and his defaults, and is barred. (5) And that the United States Fidelity Guaranty *Page 557 Company is estopped by reason of its laches, neglect and failure, after the death of A.G. Brice, to require S.E. McFadden to make annual returns and account; and that she was not liable in any way whatsoever."
Plaintiff's attorneys then docketed the case on Calendar 2. On call of the case in open court on November 12, 1926, Hon. W.H. Townsend, Judge presiding, ordered that the case be referred to R.L. Douglas, as special referee, "to take the testimony offered on all issues raised by the pleadings, to state the account and to report the testimony, together with the findings and conclusions thereon only as to amount due the plaintiff, to this Court with all convenient speed."
After the holding of certain references under this order and upon motion of the Surety Company, J. Weldon Anderson was by order made a party defendant; he had acquired a certain tract of land, known as the McCluney land, which McCluney had conveyed to the guardians in satisfaction of a mortgage given by him to them for borrowed money and which McFadden, after the death of Brice, as surviving guardian had conveyed to Anderson and his brother, the latter having conveyed his interest to J. Weldon Anderson.
The object of the Surety Company in bringing Anderson into the case was to secure an adjudication that McFadden had no right to convey the McCluney land to Anderson, that it was an asset of the guardianship estate and that its liability upon the bond should be credited with the value of that land; the sale having been made by McFadden without the sanction of the Court.
Anderson answered claiming that McFadden as surviving guardian had the legal title to the land and was authorized to convey it to him.
The referee held a number of references, and on May 20, 1927, filed his report within the limitation fixed, as stated by the order of reference. The report is most elaborately and carefully prepared; he found that the amount due upon *Page 558 the bond, to which the plaintiff was entitled, was $8,999.82, with interest from January 1, 1925.
To this report the Surety Company filed exceptions.
The case came on for trial in January, 1928, before his Honor, Judge Ramage, then acting as special Judge under appointment of the Governor, prior to his election as circuit Judge. All of the issues in the case were before his Honor at this trial, including the exceptions to the referee's report.
Over the objection of the defendants, his Honor submitted the following issues to a jury which was impaneled, as "issues out of chancery"; they were answered as indicated:
"1. Whether or not Mr. A.G. Brice's estate has been fully discharged on the bond?
"Yes.
"2. Whether or not the United States Fidelity Guaranty Company waived all claims against A.G. Brice's estate?
"Yes.
"3. Whether or not there has been negligence and laches on the part of the United States Fidelity Guaranty Company?
"Yes.
"4. If there has been negligence and laches on the part of the United States Fidelity Guaranty Company, is this company barred or estopped from setting up any claim against the estate of A.G. Brice?
"Yes."
Thereafter on March 15, 1928, his Honor, Judge Ramage, filed a decree in which he confirmed the report of the referee, as he declares "except as herein modified."
Inasmuch as the order of reference directed the referee to take and report the testimony upon all of the issues in the case, to state the account between the guardians and the estate; and to report his finding only as to the amount due to the plaintiff, it appears clearly that the only conclusion of the master reviewable by the circuit Judge *Page 559 was the amount ascertained to be due to the plaintiff; and he having concurred in that finding, it cannot be rightly said that there is anything in the decree which modifies the findings and conclusions of the referee. It was up to him then to decide, from the reported testimony, all of the other issues in the case.
After directing judgment against the Surety Company and the administratrix of the estate of McFadden for the sum of $8,999.82, with interest from January 1, 1925, at 7 per cent per annum, he made the following adjudications:
1. That the Brice estate be discharged from all liability, except upon its happening that the plaintiff be unable to collect the amount of the judgment against the Surety Company. No mention was made of a failure to collect against the McFadden estate, which, in view of its utter insolvency, appeared unnecessary. And in view of the known ability of the Surety Company to respond, the condition as to it appears superfluous;
2. That the McFadden estate be disallowed "any claim of any kind set up by the estate";
3. That the McCluney mortgage was discharged under the ruling of the Supreme Court in the case of Werber v.Cain, 71 S.C. 346, 51 S.E., 123;
4. That the guardians held the legal title to the McCluney land upon a conveyance of it to them by McCluney in satisfaction of the mortgage which he had given to them as guardians;
5. That the legal title to the McCluney land having been vested in McFadden and Brice, McFadden, after the death of Brice, could convey to the Andersons only one-half of it, the other half being vested in the Brice estate;
6. That upon payment by the Surety Company of the judgment rendered, it be subrogated to the rights of the plaintiff in the one-half of the McCluney land which was vested in Brice by the conveyance of McCluney; *Page 560
7. That the Brice estate is released so far as the Surety Company is concerned.
From this decree the defendants, the Surety Company, J. Weldon Anderson, and the administratrix of McFadden estate, have appealed upon exceptions which present the questions hereinafter considered.
There are several very interesting questions involved in the appeal:
1. The amount due to the ward upon the guardianship account:
2. The rights of the ward against the Surety Company;
3. The rights of the Surety Company against the estate of Brice;
4. The rights of the Surety Company against Anderson.
1. The amount due to the ward upon the guardianship account:
As indicated above, I am satisfied with the conclusions of the master confirmed by the circuit Judge upon this phase of the case.
2. The rights of the ward against the Surety Company:
The plaintiff is entitled to enter up judgment against the Surety Company for the amount for which McFadden and his estate are accountable, $8,999.82, with interest at 7 per cent from January 1, 1925.
Inasmuch as the estate of McFadden is admittedly hopelessly insolvent, I apprehend that the exceptions of the executrix are negligible. The Surety Company, of course, is entitled to enter up against the estate judgment for the amount it may pay.
3. The rights of the Surety Company against the estate of Brice:
This is the vital question in the appeal; it has received scant attention in the circuit decree and in the opinion submitted by Mr. Justice Carter. The referee was not called upon to do so and did not pass upon it. His Honor, *Page 561 the circuit Judge, dismisses it with the adjudication simply "that the estate of A.G. Brice be and the same is hereby declared discharged from all liability, unless" the plaintiff shall fail to collect from the Surety Company, and proceeds to discuss what he considered "the main question in the case," the liability of Anderson on account of the purchase of the McCluney land from McFadden, in my opinion a comparatively insignificant and readily soluble issue. His Honor, Mr. Justice Carter, treats the matter as if it were the sole contention of the Surety Company that if it should be held that the Brice estate has been discharged the Surety Company would thereby be released. I understand that the Surety Company does make that contention, but it also makes the most serious contention in the case, that under the terms of the bond, Brice, as one of the obligors of the bond, a principal, undertook to indemnify the company from any loss which might be sustained by it upon account of the bond, and that under this obligation, both implied and express, the Brice estate is liable over to the Surety Company for any amount it may be compelled to pay as a result of the breach of the bond.
On December 5, 1912, it was clearly contemplated that Brice and McFadden should be appointed joint guardians of the estate of the minor, the plaintiff herein, for on that day J.W. Means, Sr., the father of the minor, filed a petition in the Court of Probate for their joint appointment. They were accordingly so appointed, as alleged in the complaint, upon the execution of a joint bond, signed by them as principals and the Surety Company as surety, conditioned "that if the said Samuel E. McFadden and A.G. Brice should faithfully execute the trust reposed in them as guardians of the person and estate of Coralie Means a minor * * * then the obligation of said bond was to be void otherwise to remain in full force" (quoting from the complaint). *Page 562
Brice and McFadden made separate applications to the Surety Company for the bond, and while it appears more clearly in the application of McFadden than in that of Brice that a joint bond was contemplated, the application of Brice distinctly recognizes the fact of joint appointment. Theyboth signed the same bond, with the Surety Company as surety, and it is too late now to contend that the applications being separate it was intended that separate bonds should be executed. By signing the joint bond, Brice accepted it as a compliance with his application.
Brice from the first assumed practically the exclusive management of the estate; he received the corpus, invested it prudently, collected the income, paid the expenses of the maintenance and education of the ward, and in every way sustained his reputation as an honest and capable attorney and faithful trustee.
The question naturally in order is whether the guardian Brice, through his executrix after his death, has met the obligation to account.
It appears that in September, 1918, after Brice's death in the previous January, the executrix of his will, the defendant Sallie M. Brice, turned over a listed number of collateral securities taken by Brice upon investments of the estate funds, to the surviving guardian McFadden, without an order of Court directing it to be done, and without notice to the Surety Company. She took a receipt for these securities from McFadden, and thereafter the sole management of the estate was conducted by McFadden.
Assuming that this delivery was a valid one, the inquiry is pertinent as to the value of these securities as meeting the obligation of Brice.
They were as follows:
1. Note of G.R. Dawson, $1,000, September 1, 1917, due January 1, 1918, interest 6 per cent, collateral two $500 First Liberty Loan bonds; *Page 563
2. Note J.B. Westbrook, $1,200, September 1, 1917, due January 1, 1918, interest 6 per cent, collateral twelve $100 First Liberty Loan Bonds;
3. Note M.R. Clark, $400, September 1, 1917, due January 1, 1918, interest 6 per cent, collateral four $100 First Liberty Loan bonds;
4. Note City of Chester, $900, May 5, 1917, due January 1, 1918, interest, 6 per cent, collateral, none;
5. Note Mamie S. Kerr, $225, June 25, 1917, due December 1, 1917, interest 8 per cent, collateral, mortgage on 72 acres of land and chattel mortgage upon a horse;
6. Note J.L. Boyd, $3,000, February 1, 1913, due one year, interest 8 per cent, collateral, mortgage upon real estate, upon which the interest has been paid up to February 1, 1918;
7. Bond of J.H. Marion, $2,350, March 6, 1913, due February 3, 1914, interest 7 per cent, collateral, real estate mortgage, interest partially paid up to January 1, 1918;
8. Note F.M. and H.R. Hicklin, $2,950, January 29, 1913, due one year, interest 8 per cent, collateral, real estate mortgage, interest paid to January 1, 1917, and $929.05 on principal and interest May 6, 1917;
9. Deed of McCluney to the guardians of the tract hereinbefore referred to as the McCluney land and certain other papers in connection therewith, the consideration being McCluney's mortgage to the guardians.
The apparent face value of these securities was as follows:
1. ......................................... $ 1,000.00 2. .......................................... 1,200.00 3. .......................................... 400.00 4. .......................................... 900.00 5. .......................................... 225.00 6. .......................................... 3,000.00*Page 564
7. .......................................... 2,350.00
8. .......................................... 2,950.00
9. .......................................... 4,000.00
____________
Total ..................................... $16,025.00
The face value of these securities being nearly twice the balance due by Brice in January, 1918, it is fair to assume that considerable payments had been made upon them prior to the time they were turned over by the executrix to McFadden. At any rate, they appear amply sufficient to have met Brice's obligation.
Thereafter McFadden assumed complete administration of the trusts and as events have shown, so far as evidence to the contrary appears, wasted every dollar of them.
It would appear harsh in the extreme to hold that the estate of Brice, who fully and faithfully executed the trust as long as he lived, and whose executrix, upon advice of counsel, delivered the ample securities to McFadden after Brice's death, should be held responsible for the subsequent dissipation of them by McFadden.
I agree with the contention of counsel for the Surety Company that Brice was bound by the express agreement contained in his application for the bond: "To indemnify and save the said company harmless from any and all loss, costs, charges, suits, damages, counsel fees and expenses of whatever kind or nature, which said company shall or may, for any cause, at any time, sustain or incur, or be put to, for or by reason or in consequence of said company having executed said bond."
The authorities cited by counsel I think also sustain the proposition that in the absence even of such a provision either principal upon a joint bond impliedly undertakes to indemnify a surety for a loss sustained by a breach of the bond either upon his part or upon that of the other principal. (The *Page 565 reporter will add a note containing a list by titles of these authorities.)1
The case of Broome v. Mordecai, 117 S.C. 195,108 S.E., 407, 410, is not opposed, as that was a case controlled by the decision of Miller v. Sligh, 10 Rich. Eq., 247, to this effect: "When there are joint trustees, the general rule is that each is liable for his own acts alone, and not for the acts of his co-trustees, except where he has contributed to them."
Both turned upon this principle and not upon such a bond as is here presented.
But in my opinion there is this consideration which prevents the application of these principles to the case at bar:
There can be no question as to the correctness of the proposition that upon the death of a joint guardian the right to the possession of the assets of the estate, and the sole right to administer the trust, devolves upon the surviving guardian. McFadden therefore had the legal right to demand and receive of the executrix, the securities in which Brice had invested the trust funds, and the executrix had the legal right to turn them over to McFadden, without an order of Court and without notice to the Surety Company.
It must be presumed that when Brice accepted the appointment of himself and McFadden as joint guardians, *Page 566 and executed a joint bond as such, he knew, and must have contemplated, that if he should die pending the administration of the estate, it would become a part of the fiduciary duties of McFadden, surviving, to receive his unadministered assets, and thereafter to conduct himself in reference to them, as if he had originally received them; it was a necessary incident of his obligation, which to the extent of delivering the securities to McFadden has been fulfilled. It was just as much an incident of McFadden's obligation, that upon the death of Brice, pending the administration, he would receive such unadministered assets and faithfully execute the trust in relation to them.
While it was the duty of the executrix to turn over to McFadden the unadministered assets, and of McFadden to receive them, I find no ground for holding that this act, ipsofacto, constituted a release of Brice's obligations under thebond. No one but the Court had the power to declare such a result.
If the executrix had had any justifiable reason to think that the securities on hand could not be safely trusted to McFadden, and had made that appear to the chancellor, I think that it would have been an unwarranted constriction of the great powers of a court of equity to deny to the chancellor the power to give her relief.
Or if she had no such suspicion, a court of equity, upon due notice to the Surety Company, had the power to confirm such action and discharge the estate of Brice.
Evidently the latter was the condition then presented: McFadden at that time was a lawyer of outstanding prominence by reason of his reputation and ability at the Chester bar; no one, not even the Surety Company whose attorney he was, had the slightest suspicion of his unfaithfulness. The executrix certainly had none; she acted upon the advice of a lawyer of unquestioned ability and character, and doubtless was moved by the very natural and proper desire to turn over all the affairs of the guardianship in the hands *Page 567 of her husband, and be quit of all responsibility in connection with it.
If upon this showing the Court would have confirmed her action, after due notice to the Surety Company, and released her from all further liability upon the bond, I think that it may now do the same thing nunc pro tunc, in the absence of evidence of prejudice to the rights of the Surety Company.Poole v. Bradham, 143 S.C. 156, 141 S.E., 267.
There is not the slightest evidence tending to show that the Surety Company would have been prejudiced by such an order. As early as September, 1919, about a year after the securities had been turned over to McFadden, the Surety Company was notified by letter of McFadden, dated September 30, 1919, of the death of Brice and that the securities which he held had been turned over to McFadden as surviving guardian, that he was in active charge of the administration and that the papers were in excellent condition and correct in every way. The company replied on October 16th: "We are greatly indebted to you for your full explanation of the matter. * * * We fully understand the entire situation at this time" and asking McFadden to give them an inventory of the property in his possession "and under your control as guardian of said ward." Later in January, 1920, the company wrote: "What we desire is to be advised that the matter of the estate of Coralie Means has been fully accounted for up to the date of the death of Mr. Brice and the estate of Mr. Brice and this company as his surety fully discharged from all liability with respect to the assets of this ward," and asking for a copy of the return of the estate of Coralie Means with an inventory of the assets in his possession and under his control as guardian. The evidence is replete with circumstances showing that the Surety Company knew of the death of Brice, knew that the executrix had turned over all the unadministered assets to McFadden, that McFadden was in possession of them, was in active charge of the administration, and that they would look solely to *Page 568 McFadden whom they trusted for the proper administration of the estate with no intention of looking to the Brice estate for anything connected with the management or for any claim of indemnity in the event that McFadden did not faithfully execute the trust.
The Surety Company with this knowledge must have known that the purpose of the executrix was to rid herself of any further connection with the estate; their conduct naturally induced a sense of security on her part. If the company at that time had had any objection to the delivery of the securities to McFadden and to the evident desire of the executrix to be free from further liability in the matter, they should have taken some action to disabuse her mind of such impression and to give her notice that notwithstanding the fact that she had done what she had the right to do and what McFadden had the right to demand of her, they were still looking to her in the event of a defalcation by McFadden. Their conduct throughout was calculated to create the impression on her mind that they were looking to McFadden alone.
4. The rights of the Surety Company against Anderson:
The facts bearing upon the contention of the Surety Company, affecting the land of Anderson, are as follows, possibly repeating what may already have been stated:
In February, 1913, the guardians referred to loaned $4,000 of the guardianship funds to one McCluney. The loan was secured by first mortgages upon two tracts of land, aggregating 130 acres, executed at different times but to secure the same debt.
In January, 1914, McCluney paid the first year's interest upon the loan, $320; and in November, 1914, finding himself unable to pay the debt, he conveyed the land, in satisfaction of the mortgage, estimated then to be $4,320, to the guardians. *Page 569
In the return for 1914, the guardians charged themselves with $264 as interest on the mortgage and $240 income for 1915, $240 income for 1916, and $304.25 income for 1917.
In the return for 1914 the land as conveyed by McCluney was returned as $4,000 cash, the deed being held by the guardians for the benefit of the guardianship estate, of course, and in the same return the account of the guardians was credited with $4,000, the McCluney land, as an investment. It is plain, therefore, that the McCluney land thus passed out of the account for the years 1913 to 1918, which has been considered as the basis of the statement of Brice's account.
After the death of Brice in 1918, McFadden had the management of the McCluney land. In my statement of Brice's account it does not appear, and properly so, as the deed itself was turned over to McFadden along with the other securities, by the executrix, in September, 1918.
In January, 1920, McFadden advertised the McCluney land for sale at public outcry at the courthouse. As a result of this sale and private negotiations pursuant thereto, McFadden arranged a sale of the land to the defendant, J. Weldon Anderson, and his brother and executed to them a deed of conveyance for a consideration of $4,609.07. Thereafter the brother of J. Weldon Anderson conveyed his half interest to him; he has been in sole possession of the land and has made extensive improvements thereon since the date of the deed, January 26, 1920.
The contention of the surety company is that the acceptance by the guardian of the McCluney deed and that the deed from McFadden to the Andersons were both irregular without an order of Court in each instance; that as a consequence the title to the land is in the guardianship estate or in the plaintiff as she has become of age; and that upon their satisfaction of the liability which they may have incurred under the bond, they will become subrogated to the *Page 570 rights of the plaintiff in the land, title to which is now apparently in the defendant J. Weldon Anderson.
I do not think that there can be a doubt but that both transactions were irregular. After the guardians had made the loan to McCluney, they were not authorized to convert funds of the estate into real estate without an order of the Court, or after the conveyance from McCluney to convey the land to the Andersons.
"It was not permissible (at common law, referred to by the author), for a guardian to change real estate into personal, or personal into real, except for reasons which had been passed upon by the Court. He could not therefore sell real estate of the ward except in compliance with an order of Court; and this rule still generally exists unless altered by statute." 12 R.C.L., 1127.
"The same considerations prohibit the guardian to change the nature of his ward's estate in the contrary direction by buying real estate with the ward's money; and on arriving at the age of majority the ward has the option to accept the property so acquired and thereby ratify the unlawful act, or to repudiate it and claim his original property." 12 R.C. L. 1127.
"From this it can be seen that there is no inherent power in the guardian to sell the ward's land. Before he can sell he must have the power to do so conferred by a Court of proper jurisdiction acting under authority of the statute. A sale of an infant's real estate made by a guardian without the sanction and order of the Court properly obtained, would be void." 3 Thomp. Real Prop., § 2732.
The transactions, however, I think were voidable and not void. It was within the power of the ward to disaffirm either, and having confirmed both this this action seeking an account of the matter as cash, which has been awarded to her, her right of disaffirmance has passed away. There is nothing, therefore, to which the surety company could be subrogated. The deed from McFadden to Anderson having been ratified *Page 571 by the plaintiff, who has been given full benefit of it in the accounting, becomes a valid deed in fee simple.
It is true that the title vested in the guardians by the deed of McCluney, but it was in them as trustees. Upon the death of Brice it passed to McFadden as surviving guardian, but he had no right to convey it except in the execution of his trust. His deed to Anderson has been perfected, not because McFadden had the right to convey it, but because the ward has ratified what she might have disaffirmed.
I think that the reasoning and conclusions of the circuit Judge and of Mr. Justice Carter in recognizing the right of the guardian as the holder of the legal title to convey in a manner that would unquestionably constitute a breach of trust would establish a very dangerous precedent, unlimited by the right of the beneficiary to disaffirm.
MESSRS. JUSTICES BLEASE and STABLER concur.
MR. CHIEF JUSTICE WATTS concurs in part.
1 The following authorities are cited in support of the contention of the Surety Company, respecting the liability of principals under a joint bond: Jones' Heirs v. Jones' Administrator, 42 Ala., 218; Hughlett v.Hughlett, 5 Humph. (Tenn.), 453; Hoell et al. v. Blanchard, etc., 4 Desaus., 21; Dobyns v. McGovern, et al., 15 Mo., 662; Stephens et al. v.Taylor et al., 62 Ala., 269; Babcock v. Hubbard, 2 Conn., 536; Eckertv. Myers et al., 45 Ohio St., 525, 15 N.E., 862, 864; Ames v. Armstrong,106 Mass. 15; Jamison v. Lillard, 12 Lea (Tenn.), 690; Jefferies v.Lawson, 39 Miss., 791; Moore v. Wallis, 18 Ala., 458; Miller et al. v.Sligh et al., 10 Rich. Eq., 247; Hill v. Wright, 23 Ark. 530; Brandt on Suretyship, pars. 145, 205, 207, 221; Leary et al. v. Murray (C.C.A.), 178 F., 209, 21 Ann. Cas., 868; Mellette Farmers' Elevator Co. v. H.Poehler Co. (D.C.), 18 F.2d 430; Williams et al. v. U.S.F. C.Co., 236 U.S. 549, 35 S.Ct., 289, 59 L.Ed., 713.
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