By the Court.
Lyon, J.,delivering the opinion.
William Skelton, one of the plaintiffs in error, as the guardian of Edward McGrady and Sarah Ann McGrady, minors, had in his hands the sum of $800 00, belonging to his wards jointly, and having been removed from the guardianship as to Edward McGrady, and Obed. C. McGrady appointed guardian for said Edward in place of Skelton, this action was brought by the Ordinary for the use of Obed. C. as such guardian, for the recovery of that part of the sum in the hands of Skelton as former guardian that belonged to the ward Edward, against Skelton and his sureties on his guardian bond; The defendants to that action and plaintiffs here, in defence thereto, put in evidence an order of the Court of Ordinary of Webster county, passed at the June Term, 1857, authorizing Skelton as guardian to invest said sum of $800 00 then in his hands, as guardian of said mi*270nors, in land, and to take the title thereto in his name as guardian, and a deed from one Benjamin Griffin to him as guardian, for lot of land No. 187, in 25th district, Webster county, dated 6th of July, 1857, with proof that the lot was worth $800 00 or $1,000 00. It appeared, from the proof, that the lot of land was not purchased by Skelton with the money of the wards under the order of the Ordinary, but had been long before the granting of the order purchased by Skelton from Griffin and paid for in negroes; that he was in possession of the land as his own from some time in 1856? held Griffin’s deed to him individually for the land, which deed had been by him given up to Griffin and destroyed, and this deed to him as guardian made by Griffin in lieu of it.
It also apppeared that at the time of this cancellation and reconveyance, there were judgments against him, Skelton, and that the land was subsequently sold under an esecution against Skelton, obtained in 1858, and the proceeds applied, in part at least, to judgments older than the deed from Griffin to Skelton as guardian, at which sale one Cato was the purchaser, and who had gone into the possession of the land under such purchase.
Upon these facts the Court charged the jury: •
1. That if they believed the order of the Ordinary authorizing Skelton to invest $800 00 in land, was procured by fraud, then it might be attacked in any Court, even collaterally, and treated as null, and all acts of Skelton done by virtue of it were void.
2. That.if Griffin had sold Skelton the land and made him a deed thereto before the order was passed, the title to the same was in Skelton, and no cancellation or destruction of the first deed arid making of another deed to Skelton as guardian, could divest his individual title and be an investment for the benefit of the wards; the last deed was void and conveyed no title.to Skelton as guardian.
3. That Skelton was bound in good faith to make the investment in land, and if in doing this he failed to act in good faith for the promotion and advancement of the best interest *271of the children, then the children were entitled to recover the amount shown to be in Skelton’s hands.
To these several charges plaintiffs in error excepted.
Upon the first proposition stated in the charge, we agree with the Court below; that is, if the order authorizing the investment was procured by fraud, then it could be impeached collaterally, and all acts done by Skelton under it were void.
1. All judgments, orders, decrees, or contracts, of whatever kind, obtained or procured by fraud, are mere nullities, and may be so treated by third persons whenever and wherever they are sought tobe used as valid judgments, etc. * 1 Green. Ev., sec. 284; Chitty on Contracts, 3; Moore vs. Bowmaker, 7; Taunt., 9; Fermor’s case; 2 Coke, 210; 1 Phillips’ Ev., 341.
2. We are not so well satisfied of the soundness of the second proposition in the charge; that is, that the second deed made by Griffin for this lot to Skelton, as guardian, was void and conveyed no title, notwithstanding the cancellation and destruction of the first deed; for, .although it is very true, that this is a very irregular and imperfect mode of conveyance of land, to say the least of it, still, if this had proved a profitable operation for the wards, the rights of third persons not intervening, we are not so sure but that a Court of Equity, on the application of the wards, would not give effect to the transaction 'for their benefit, treating the second deed of Griffin made with the assent and by the direction of Skelton as the deed of Skelton.
3. But it is altogether unnecessary to discuss this question, as the wards have not ratified the transaction or asked for its enforcement, without which it is void and of no effect as to them; and in that sense there is no error in the charge, and certainly none in any sense, under the facts of this case, that prejudices the plaintiffs in error.
4. To the third position assumed by the charge, we give our unqualified approbation as the law of the case; that is, “that Skelton was bound to make the investment in land in good faith, and if, in making the investment, even with the sanction of the Ordinary, he failed to act in good faith for *272the promotion and advancement of the best interest of the children, then the plaintiffs were entitled to recover.”
The facts show that Skelton did not invest the money of his wards in this land, but that he, under color of this order, substituted the lo£, or intended to do so, by this clandestine arrangement between himself and Griffin, which belonged to himself, for the money of his wards that he had previously applied to his own private use. And this was a complete reply to his entire defense.
5. It is very questionable whether this order of the Ordinary authorizing the investment, could have protected the guardian under any circumstances, however fair or in good faith he may have acted; for the Act of 17th February, 1854, under which the Qx’dinary acted, gives to the Ordinaxy no such power. That act authorizes the guardian, with the approval of the Ordinary, to invest surplus xnoney of the wards in slaves—not land. Paxn. Act of 1853-54, page 35. Reither can such power be implied from the Act of 19th of December, 1829. Cobb Dig. 327. That Act was intended to authorize guardians, under an order of the Ordinary, to keep the slaves of minors together, and have them employed in such agricultural or other operations as the guardian might deem manifestly expedient., and when the minor had no land for that purpose, the guardian is authorized by that act, with the approval of the Ordinary, to invest disposable funds in the purchase of such reasonable portion of land as xnay be necessary for the purposes of the act-. When the minor has no slaves to keep together or employ in. the cultivation of the land, as appears to be the fact in this case, there can not be the slightest pretext for the investment of money ixx land. Ho we vex1, as it is not necessary in the present case, we will not say how far such an order, under those circumstances, would or would not protect a guardian in the investment of his wards’ funds in land, when made in good faith. We only say that that is questionable.
Judgment affu’xned.