On petition eor a rehearing.
Howk, J.The appellees Rose A. Ball and John Ball “most earnestly petition this court to grant them a rehearing of the above entitled cause on the point on which the judgment of the court below was reversed; ” and in support of their position, that the decision of this court, in reversing the judgment below, is erroneous, they assign certain reasons which we will briefly consider.
1. The first reason assigned for a rehearing of the cause is thus stated by the appellees’ learned counsel: “ The judgment of this court is based upon the erroneous idea, that the judicial sale sought to be set 'aside was made by a guardian ; whereas it was made, as appears by the record and as was urged by your petitioners in their printed briefs, by a commissioner.” We are under the impression, that the appellees’ counsel have probably misapprehended the “ idea,” whether erroneous or not, upon which the judgment of this court is based. The opinion of this court shows very clearly, we think, that the judgment pronounced therein was based upon the idea, that the sale sought to be set aside was made upon the application or petition of the-guardian, that the additional bond which the statute imperatively requires of the guardian in such a case, and which is in the nature of a condition precedent to the order of the court for the sale of *410the real estate, had never been executed by the guardian or by sufficient freehold sureties, and that, for the want of such additional bond, the proceeds of the sale of the real estate had been wholly lost to the wards of the guardian. These were the ideas or facts, plainly alleged in the appellants’ complaint and admitted by the appellees’ demurrer thereto to be true, upon which “ the judgment of this court,” as announced in the original opinion, was based, and upon which we now adhere to that judgment.
But the appellees’ counsel say, that the record of this cause shows that the sale of the real estate was made, not by the guardian, but by a commissioner appointed by the court for that purpose, and that this commissioner' gave a bond conditioned for the faithful performance of the duties of his trust, according to law. In section 20 of the act of Juue 9th, .1852, touching the relation of guardian and ward, it is provided that “'The court may empower such guardian to make sale of such real estate, or may appoint a commissioner or commissioners for that purpose.” 2 R. S. 1876, p. 597.
It is manifest, we think, from the language of this section and its position in the statute, that the Legislature never intended that its directory provisions should beso construed as to dispense with the imperative mandate of sections 18 and 19 of the same act, specifically providing that the court shall require the execution by the guardian of an additional bond, before any order is made for the sale of the ward’s real estate. The sale, though made by a commissioner under the appointment of the court, is none the less the guardian’s sale. The statute does not even pi’ovide, that the commissioner appointed shall be required to execute any bond, either before or after his appointment; and no duty or trust is imposed upon such commissioner, in connection with the sale, except that he “ shall make report thereof to such court, and produce the *411proceeds of sale.” These proceeds would go at once, upon the confirmation of sale, under the law, into the possession of the guardian.
This is the reason, as it seems to us, why the Legislature provided, in such mandatory terms, that the court shall require the guardian to execute an additional bond, before any order should be made for the sale of the ward’s real estate ; and it may probably account for the absence of any requirement in the statute, that the commissioner, appointed to make a guardian’s sale, should give any bond for the, faithful performance of his duties.
In the case at bar, as it comes before this court, the appellants allege, and the appellees admit, that the appellants’ guardian, upon her application for the sale of her wards’ real estate, never gave the additional bond required by the. statute in such a case; • and that, for the want of such additional bond, the proceeds of the sale of their real estate ■were wholly lost to the wards of the guardian. Upon these allegations and admissions, we held and still hold, that the appellants have a title to, and an interest in, the real estate in controversy, which have never been sold away from them in conformity with law, and which they are not estopped from asserting, upon any legal or equitable grounds apparent in the record. We are of the opinion, that the fact that the guardian’s sale was made by a commissioner, who had given bond for the faithful performance of his duties, does not in any manner affect the appellants’ cause of action, or estop them from asserting the same and seeking the relief demanded in their complaint.
The other reasons assigned by the appellees for a rehearing of this cause are, in substance, the same as the first, differing therefrom chiefly in verbiage and phraseology. We need not, therefore, extend this opinion in setting out those other reasons, or in commenting upon them; as, in what we have said, we have considered and passed upon *412the principal cause, upon which the appellees relied for a rehearing.
The petition for a rehearing is overruled, at the appellees’ costs.