Williams v. Morton , 38 Me. 47 ( 1854 )

Tenney, J.

— In the sale of real estate under a license from the Court authorized to grant it, “the requisites provided by statute, of bonds to account, of a previous oath, of advertisements, and of-a public sale,-are important to the interests of all concerned in the estate to be conveyed, as heirs -at law, creditors and others.”

“ The rights of persons thus connected with the estate conveyed,-and whose interests are affected by the authority to sell, are regarded by these provisions j and they, and any claiming under them, are not concluded by the exercise of the authority-and license to sell in derogation of their rights, unless every essential requisite and direction of law has been complied with.” Knox & al. v. Jenks, 7 Mass. 488.

In an attempted sale, similar to the one now under consideration, of Williams v. Reed & Trustee, 5 Pick. 480, where there was an omission to give a bond, and take the oath after the license to make the sale, the Court say, “ there being no bond and no oath, the sale is void, or at least voidable, so that the parties to it are at liberty to vacate it, and consider it annulled.” — The fee of the land remains in the wards, it not having passed from them by a sale authorized by the statute.

In Moody v. Moody, 2 Fairf. 241, a sale of real -estate by an administrator was held void as against heirs, by reason of his neglect to give the bond required by law.

If the title of the heirs has not passed from them to the railroad company, and vested in the latter, the money has been paid without consideration, and it can be- recovered back, of the guardian, upon his covenants in the deed, or in an action for money had and received by him for their benefit.

But if the guardian and the railroad company were disposed to treat the sale as valid, and the former had failed to account in any manner for the money received, as the consideration of the deed, are the defendants liable upon the bond in suit, for the omission ?

Upon a guardian’s appointment, he shall give bond w-ith sufficient surety or sureties, conditioned for the faithful discharge of his trust, — To render a true and perfect inventory of the estate, &c. of his wards, — To render a just and true account of his guardianship as often as, and whenever by law required, — At the expiration of his trust to pay and deliver over all moneys, &c. on a final and just settlement of his accounts, &c. R. S., c. 110, § 15.

By the statute of Massachusetts, c. 38, § 6, vol. 1, page 136, of the statutes, guardians are required to give bond to the Judge of Probate in a reasonable sum with sufficient sureties, for the faithful discharge of the trust reposed in them, and more especially for the rendering a just and true account of their guardianship, when and so often, as they shall be thereunto required. This is substantially the same as the requirement in the R. S. referred to, excepting the last condition in the latter, which is immaterial for the present inquiry.

In the license provided for the sale of the real estate of persons under guardianship, that the avails thereof may be put out, and secured to them on interest, a bond is required of the person licensed with surety or sureties, conditioned for the observance of the rules and directions of law in the sale of real estate by executors, &c. and to account for and make payment of the proceeds agreeably to the rules of law. Mass. Statutes of 1783, c. 32, § 5, page 121. This provision is similar to that contained in R. S. of this State, c. 112, § 5.

In Lyman v. Conkey, 1 Met. 317, the Court in Massachusetts have given a construction to the provisions of the statutes of 1783, c. 38, § 6, and of c. 32, § 5, and they say, “Whenever the object is to dispose of real estate of the ward, to raise a fund to stand in lieu of the real estate for the future use of the ward, or of any other person, who would have been entitled to the rqal estate, it is deemed a separate, special trust, for the due execution of which, a separate security is required, as a condition precedent to the validity of the sale; and therefore,.the Court are of the opinion, that the accounting for the proceeds of the sale, made under such special license, to sell for the benefit of the ward, is not one of the general duties of guardianship for the performance of which, the sureties on the original guardianship bond are responsible.”

It could not have been designed by the Legislature, that a bond given for the faithful discharge of the duties of guardian, which by his letters of guardianship he is bound to perform, should be the security for the observance of the provisions, in a sale of real estate, and the proper application of the proceeds, when the sale was under the authority of a special license only, and a special bond is required, that the duties to be done under that license, as the law prescribes, shall be faithfully performed. The proceedings under the license, as required by the statute, are not strictly speaking guardianship duties; but as matter of convenience, the change of the real estate of the ward-into money, is to be done by him, who had the charge of the former, and who is to see that the latter is properly secured upon interest. It is very clear, that a breach of the special bond, under a license, does not constitute a breach of the general bond of guardianship; and consequently an omission to give the special bond, violates none of the conditions in the other-.

It is contended, that the deed of the guardian is valid as a release under B. S., c. 81, § 7|and that the money received of the corporation may be treated as the consideration therefor.

The land attempted to be sold, had upon it two dwelling-houses, and by § 5, of the chapter referred to, houses cannot be taken without consent of the owner. The provision in the 7th section cannot be construed to authorize a guardian to agree with the corporation, to permit it to take dwelling-houses, and to settle the damages therefor; as this authority extends only to those cases, where the corporation shall take any real estate as aforesaid, of any minor, &c. referring clearly to § 2, of the same chapter, which gives the power to take real estate with the restriction contained in § 5.

The railroad company, however, in this case must be understood to have intended, what these acts clearly indicate. The case finds, that the corporation made the offer to purchase the estate. The consideration of a transfer of title was paid, there being no fact reported showing that any thing less was intended. The license was to sell real estate, and the deed was appropriate for an absolute conveyance.

The real estate being still the property of the minors, in an action upon the covenants in the guardian’s deed, that he had pursued the steps to make the deed effectual, a defence, that the license was granted, without proof of any other fact, could not avail.

The provisions in the statutes of 1843, c. 1, cannot be so construed as to give to the plaintiff the right to maintain the action.

It is again insisted, that as one of the conditions of the bond in suit is, to render an account as often as required by the Judge, and as he omitted to do so, on being cited for that purpose, that condition has been broken. The case Joes not find that the wards were possessed of any property, excepting the real estate attempted to be sold, which was duly and seasonably inventoried. No delinquency was imputable, by reason of having settled no accounts, unless it be for the omission in reference to the avails of the real estate supposed to have been sold. The bond required by law upon the license to sell, was conditioned, that he should account for the proceeds of the sale according to law. The law required, that the proceeds of the sale should be put out at interest; and when this was done, he had fulfilled his whole duty. It not appearing that any property was in his hands for which he was bound to render an account, the omission to render such, when cited, was not a breach of the general bond of guardianship. Hudson v. Martin, 34 Maine, 339. Plaintiff nonsuit.

Shepley, C. J., Rice, Appleton and Cutting, J. J., concurred.