delivered the opinion of the court.
After adverting to the statement of the case before set forth, the Judge proceeded:
As the case is presented to us, we do not feel ourselves authorised to consider the appellant as an intruder upon the lands of the complainant, and to treat him as her guardian, and as such, answerable to her for the rents and profits of the estate. James M. Taylor swears that Thomas Bourne, from whom the estate descended, died in the spring or summer of the year 1807, that the complainant, whose business he transacted, lived at that time with him, that some time after the death of Thomas Bourne, either the succeeding fall, or spring, or summer, he is not certain which, the appellant proposed to keep the whole of the lands of the late Thomas Bourne, and to pay one-half of the rents, (to be ascertained by persons chosen for that purpose,) to the complainant, and her sister who was then living and entitled to a part of the land, (the appellant’s mother being entitled to the other half) to which he, Taylor, who is stated in the bill to be the uncle of the complainant, and with whom she at the time lived, agreed.
If looking to this testimony, and treating Taylor as a competent witness, it should be held, that such a letting by an uncle and friend of the complainant entitled to be her guardian, and with whom she lived, and who was in the habit of transacting her business, was, if he had not then been appointed guardian, unauthorised, and that the entering upon, and holding the land by the appellant under such an agreement, constituted him an intruder, and subject to be made answerable in equity, for the rents and profits as a guar*140dian; yet seeing from other evidence in the cause, that Taylor was appointed guardian to the complainant, and filed his bond as such, in the Calvert county Orphans Court on the the 8th of August, 1808, may it not be inferred in the absence of any thing to the contrary, that the agreement with the complainant, of which he speaks, was made after he was appointed guardian, and when he was clearly authorised to rent out the land? This would be perfectly consistent with that part of his testimony, in which he says that it was made in the fall, or spring, or summer, he is not certain which, next succeeding the death of Thomas Bourne, which was in the spring or summer of 1807. For if it was made at any time during the month of August, 1808, after the 8th, it was in the summer, and within the words of his testimony. Besides, he may have been appointed guardian some time before he gave his bond, (for the time of his appointment does not appear in the record,) and it is more reasonable to suppose, that he made the agreement after he was appointed guardian, and when he was authorised to make it, than before, and when he was not authorised, there being nothing in his evidence confining the agreement to a prior time, or leading to a diiferent conclusion. Or, if it was made before Taylor received the appointment of guardian, yet as he was appointed long before any rents became due, and as it appears that he, from that time, received a portion of the rents for each year, up to the year 1814, for which credits are given in the exhibit filed with the bill, and in the report of the auditor, it would seem to follow, that he accepted the appellant as his tenant in the capacity of guardian, and received the rents in that character; and that, from the time of his appointment, the relation in which the appellant stood to him, was that of his tenant, as the guardian of the complainant. In either case, the appellant was in by authority; in the first, from the time of the original agreement; and in the latter, from the time that Taylor was appointed guardian, when a new relation commenced, and when no rents and profits had been received, *141and is not to be treated as an intruder, nor liable to be called on as guardian, to account for the rents and profits. Nor answerable to the complainant on his contract with Taylor, to whom alone he is responsible; and if Taylor has violated his duty, or malconducted himself as guardian, her remedy is against him on his guardian’s bond. But leaving this view of the subject, and looking to the other evidence in the record, it seems to us, that the testimony of Taylor cannot stand with that of several of the other witnesses, particularly that of James Wilson and Samuel Turner, with which it is wholly inconsistent; and taking the whole of the evidence together, we think the weight of testimony is against the complainant, and that the appellant did not take possession of the 1 and, and either rent it out to others, or cultivate it himself, under an agreement with Taylor, to pay a stipulated rent as charged in the bill; nor at any time enter upon it, and occupy and enjoy it, or receive the rents and profits to his own use, so as to charge him as guardian, and that he had no other concern with it, than as the agent of James M. Taylor and his mother, for which we think he should not be made to account for the rents and profits. Drury vs. Conner, 1 Harr. and Gill, 220.
But if it was otherwise, and taking the whole of the evidence together, it would be sufficient to subject him to an account for the rents and profits, yet without the testimony of Taylor there is nothing to charge the appellant, and we think it was incompetent and ought to have been rejected. He was the guardian of the complainant. It was his duty to collect the rents and account for them, and if he received and misapplied them, or they were lost, by any culpable negligence or inattention to his duty, he is answerable on his bond to the complainant, and is therefore interested in sustaining this suit, and thereby exonerating himself from liability. But it is said that this objection comes too late, and that the appellant, to avail himself of it, should have appealed from the interlocutory decree of the 26th of July, 1827, (by which the rights of the parties are supposed to *142have been settled,) within nine months from the time it was passed, the time prescribed by the act of 1785, ch. 72, sec. 27; whereas this appeal, which is from the final decree of the Chapcellor, was taken on the 3d of June, 1829, almost two years after the date of the interlocutory decree. But to this we cannot yield our assent; the rights of the parties were not finally adjudicated by the interlocutory decree of the 26th July, 1827. It is true the Chancellor does say, that he “considers all the testimony in the case competent, and so far credible when taken altogether, as to entitle the plaintiif to recover.” But that is not a decree finally settling any thing in controversy between the parties; but an expression only of the opinion of the Chancellor, upon which the decree for an account was founded. And the account when taken, might have been rejected by the Chancellor on further proof on more full consideration. The decree, therefore, directing an account to be taken, was a mere interlocutory order, from which an appeal could not properly have been taken. Snowden and others vs. Dorsey and others, 6 Harr. and Johns. 114—and Hagthrop and wife and others vs. Hook’s adm’rs, 1 Gill and Johns. 270, are conclusive on this point, and as an appeal would not lie from the decree for an account, the whole case is open upon the appeal from the final decree.
DECREE REVERSED AND BILL DISMISSED
WITH COSTS IN BOTH COURTS.