Chilton v. Parks , 15 Ala. 671 ( 1849 )

DARGAN, J.

This bill is filed with a doule aspect. The first is, to cancel the notes and deed of trust, executed to secure their payment, which were given for the amount ascertained to be due from Barr, guardian, to his ward; and if this relief cannot be obtained, then to compel an account between the present guardians of the minors, and the administrators of Laughinghouse, who was the security of Barr for his guardianship in Madison county; and to charge the administration with the amount due by Barr to his wards, on the ground, that Barr had wasted the estate of his wards, previous to his appointment as guardian in Benton connty, and before complainant became his security.

The evidence entirely fails to establish, that the notes, and deed of trust, were executed in consequence of any fraud practiced on complainant. Nor is it shown, that he was incapable, from any cause, to transact business, or incompetent to enter into, the contract. This being the case, it is clear that the complainant is not entitled to have the notes, and deed of trust cancelled ; for, independent of the consideration that in consequence of the assumption of the debts due by Barr, to his wards, the complainant became the purchaser of the land of Barr, without making any actual payment, he was clearly liable as the security of Barr, for the amount ascertained to be due to the wards.

A security is bound by the admission of his principal, made in the performance of a duty required of him by law ; and a final settlement of the accounts of a guardian, made in the orphans’ court, showing the amount of his indebtedness to his wards, is conclusive alike on the guardian, and his securities, uless the securities can impeach it for fraud. Williams v. Howell, 4 Ala. 693; Perkins v. Moore, decided at the present term.

The complainant being liable, as security, on the bond of Barr, the settlement in the orphans’ court fixed the amount of that liability, and the notes, and deed of trust, being executed in extinguishment of this liability, the complainant is bound by them, and there is no principle of equity upon which they can be set aside, or cancelled.

The next object of the bill, is to charge the administrator of Laughinghouse, with the amount due by Barr to his wards, and which it is alleged was wasted, during the time Laughinghouse was his security, and before.the complainant became bound as the security of Barr.

The administrator of Laughinghouse alleges in his answer, that he had fully administered all the assets that came to his hands, as administrator, and had made a final settlement, distributed the estate, and had been discharged from his duties as administrator by the order of the orphans’ court, before he had any notice of a demand against him growing out of the guradianship of Barr. But it is contended, that this part of his answer is. not responsive to the bill, and should be proved, and as it is not, he cannot claim exemption from liability as administrator. ■ -

We do not think it necessary to examine the questions, whether, the infant wards, could charge the administrator of Laughinghouse, for any portion of the sum due by their guardian to them, nor whether the defence relied on by him, would avail him, in the absence of proof in support of his answer, if the wards were complainants. For if the administrator of Laughinghouse would be liable to the wards, it would not follow that this complainant could influence this ■ liability for his protection. The complainant is liable for the whole amount due by the guardian to his wards, and he can claim no exemption from that liability, because, under the pleadings, and proof, the infants might charge another with all, or some portion of the debt. (Phillips & Hudson v. Brazed, 14 Ala. Rep. 746.)

. ■ Under no view of the case, is, the complainant entitled to relief, and the decree of the chancellor is therefore affirmed.