First National Bank v. Mead ( 1916 )

Beck, J.

(After stating the foregoing facts.) The court properly sustained the demurrer. The facts alleged did not make Thomas Mead the trustee of the defendants or of their property. Certainly he was not vested with any express trust, and no implied trust arises from the facts stated. The fertilizers sold to Thomas Mead were sold to him as an individual; the plaintiff did not know his relation to the title to the lands. The petition concludes with a prayer for a judgment against the defendants and also a “judgment in rem against the lands described in the petition.” The plaintiff is not entitled to either on.account of the fertilizers sold to Thomas Mead. Equally unavailing for a personal judgment or a judgment in rem is the account for fertilizers sold to W. T. Strange. “A guardian is not permitted by law to bind the estate of his ward by a contract for the purchase of goods on credit, even though the goods be for the use of the ward and properly classed as necessaries.” Fidelity & Deposit Co. v. Rich, 122 Ga. 506 (50 S. E. 338). In the case of Burke v. Mackenzie, 124 Ga. 248 (52 S. E. 653), it was said: “‘As a matter of law, guardians of the property of wards are trustees, whose powers over the property of their cestui que trusts are defined by law. Among these powers are not included the-execution of a contract binding the estate of his wards.' Howard v. Cassels, 105 Ga. 412 [31 S. E. 562, 17 Am. St. R. 44]. See also Fidelity Co. v. Rich, [supra]. The general rule is that trustees are not authorized to create any lien upon the trust estate, except such as is authorized by law. Civil Code, § 3186 [3770]. The guardiau can not by any contract, except those specially allowed by law, bind his ward’s property or create any lien thereon. Civil Code, § 2555 [3074], It is therefore incumbent upon one seeking to charge the ward’s property by a contract of the guardian to show that the claim set up by him is one which the law specially authorized the guardian to contract and bind the ward’s property therefor.” There is no law authorizing the guardian to contract, under the facts alleged in the petition, for the purchase upon credit of the fertilizers represented by the account sued upon.

Judgment affirmed.

All the Justices concur.