Botkin v. Kleinschmidt , 21 Mont. 1 ( 1898 )

Pemberton, C. J.

— Counsel for appellants contend that, as the conditions of the bond sued on are not J;he conditions prescribed by Section 387, page 370, of the Compiled Statutes of 1887, but are conditions prescribed by Section 358, page 363, same statute, they cannot be held liable in this action.

Section 358 refers to the general duties and obligations of guardians, and the conditions of the bonds they are required to execute when they take charge of the estates of their wards.

Section 387 has reference to bonds which guardians are required to give before selling real estate of their wards under order of the court, and is as follows: “Every guardian, authorized to sell real estate, must, before the sale, give bond to the probate judge, with sufficient surety, to be approved by him, with conditions to sell the same in the manner, and to account for the proceeds of the sale, as provided for in this chapter and Chapter YII of this title. ’ ’

Counsel for appellants contend that this is a special statute, governing the execution and prescribing the conditions required in bonds before real estate of the ward can be sold by the guardian under order of the court, and that, as the conditions named in the bond in suit are not in conformity with the requirements of this section, but are such as are prescribed in said Section 358, the appellants are not liable on the bond.

It will be observed that this section (387) does not prescribe any special conditions. The conditions are that the guardian will “sell the same in the manner, and to account for the proceeds of the sale, as provided for in this chapter and Chapter VII of this title.” So it will be seen that the manner of the sale of real estate, and how the proceeds thereof sh'all be accounted for, are not prescribed in Section 387, but by this section the manner of sale and how the proceeds shall be accounted for by the guardian are such as are prescribed in the two chapters named. So that all the provisions of these two chapters, referring to the manner of sale of real estate and the accounting for the proceeds, entered into the bond executed under Section 387 as much as if they had been directly referred to, or written word for word therein as conditions. And, besides, both the sections involved here are included in the same chapter. The conditions of the bond refer to the order of the court authorizing the guardian to sell the real estate. A trust was thereby confided to the guardian. These appellants obligated themselves as his sureties that he would faithfully perform the trust mentioned in the bond. A literal interpretation of the bond requires that they should stand good for its performance. A construction of the statutes that would relieve them of their plain liability would be, in our judgment, as unauthorized as unjust.

Counsel have cited authorities to the effect that sureties on the general bond of a guardian are not liable for the proceeds of the sale of real estate made by the guardian under order of the court; that the sureties on the special bond required to be given in such cases are alone liable. But these cases are not applicable. This is a case involving 'the liability on the special bond, — not the bond given for the general administration of the ward’s estate. (Withers v. Hickman, 6 B. Mon. 292; Powell v. Powell, 48 Cal. 234; Woerner on Am. Law of Guardianship, page 134.)

Counsel for the appellants insist that the judgment of the District Court against Yaeger as guardian, whereby the status of his account was determined and he adjudged to be indebted to the estate in the amount sued for and ordered to pay over the same immediately to his successor, was rendered without notice to the sureties, and that they are, therefore, not bound thereby.

Woerner says: “It is the undertaking of the surety on a guardian’s bond that his principal shall discharge all his official duties; and, since one of the duties of the guardian is to pay the amount found to be due by him to the ward by a court having jurisdiction for such purpose, it follows that the judgment to that effect must be binding upon .the surety, .unless obtained by fraud or mistake. Hence, it is held to be a well-settled principle that the sureties in a guardian’s bond are prima Jacie bound by a recovery against their principal, although they were not parties to the suit, and that they can relieve themselves only by showing that the amount recovered was in excess of the amount to which plaintiff was entitled, or that he was not entitled to recover at all. ” (Woerner on Am. Law of Guardianship, page 149. See, also, Brandt on Suretyship and Guaranty, § 580.)

In Brodrib v. Brodrib, 56 Cal. 563, it is held that a judgment against the guardian in such cases is conclusive, not only against him, but against his sureties also. (Chaquette v. Ortet, 60 Cal. 594; Biggins v. Raisch, 107 Cal. 210, 40 Pac. 333; Deobold v. Opperman 19 N. E. (N. Y.) 94.)

We think by the great weight of authority the sureties in this case are bound by the judgment against their principal, notwithstanding they were not parties to the suit.

It is also claimed by appellants that judgment was rendered against Yaeger for too much interest by the District Court. This matter cannot be inquired into now. The judgment of the District Court is conclusive in this action. If the judgment was rendered for too great a sum, the parties aggrieved should have sought their remedy in the District Court, and, failing there, should have appealed. No remedy is obtainable in this collateral action.

We are of the opinion the judgment should be affirmed, and it is so ordered.

Affirmed.

Hunt and Pigott, JJ., concur.