Hunt v. Insley , 56 Kan. 213 ( 1895 )

The opinion of the court was delivered by

Aliucn, J.

: Several objections are urged against the consideration of the petition in error and transcript of the record filed in this court, but none of them are valid. The contention on behalf of the defendant in error is that the giving of a bond is a condition precedent to the taking effect of the appointment of a guardian ; that the appointee, although recognized by the probate court, has no right to assume any control over the estate of the minors until a proper bond has been executed and approved. By section 7 of chapter 46 of the General Statutes of 1889, it is provided that guardians appointed to take charge of the property of a minor must give bond with surety to be approved by the court. The only exception to the requirement of a bond seems to be in the case of. a testamentary guardian where the testator by will requests that no bond be required. By section 15 of the same chapter, it is provided that, before any sale or mortgage of the property of a minor can be made, security must be given to the satisfáction of the court in double the value of the property to be sold or of the money to be raised bj^ the mortgage. Whatever the individual views of the members of this court, as now constituted, may be as to the proper construction of section 15, prior decisions of the court have fully settled it. In the case of Watts v. Cook, 24 Kan. 278, it was held that “the failure of a guardian to give security, as required by section 15, chapter 46, Compiled Laws of 1879, upon an order for the sale of real estate, will not render void a sale regularly made and approved.” This decision, rendered in 1880, was followed in the case of Howbert v. Heyle, 47 Kan. 58, decided in 1891, and again in Higgins v. Reed, 48 Kan. 272. While these cases refer to section 15 only, in terms, they are really decisive of the question presented in this case. The language of section 15 indicates much more strongly that the legislature intended to make the execution of a bond a condition precedent to the right to convey or mortgage than that of section 7 does that the giving of a bond should be a condition precedent to the validity of an appointment. The appointment of a guardian precedes the requirement of a bond. There are cases in which no bond need be required. If a bond is given in compliance with’ the requirements of section 7, under the decision in the case of Morris v. Cooper, 35 Kan. 156, the sureties on such bond would not be liable for any misapplication of the funds raised by a mortgage of the minor’s estate; the limit of their liability extending only to the proper care and management of ' the personal estate and the rents and profits of the realty.

Insley was appointed guardian by the probate court, took the oath required by the statute, received letters of guardianship regular in form, and was recognized by the court as the acting guardian. It being the established law of this state that a purchaser or mortgagee need not inquire whether a bond has been given under section 15, it logically follows that he need not inquire as to the giving of a bond under section 7.

The judgment is reversed, with directions to enter judgment on the special findings of fact in favor of the plaintiff for the amount of his bond and interest, and foreclosing the mortgage sued on.

All the Justices concurring.