[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 158 August 29, 1927. The opinion of the Court was delivered by On November 17, 1910, one William Ridgeway executed and delivered to R.O. Purdy and R.J. Bland, two of the defendants in this case, his bond in the sum of $6,850, due and payable five years after that date, with interest at the rate of eight per cent. per annum, and a mortgage of real estate to secure payment thereof.
On the same date Purdy and Bland assigned, in writing, the bond and mortgage to Isaac Schwartz, the duly appointed and acting guardian of the estate of the infant plaintiff in this action, and at the same time and in the same writing, guaranteed the payment of the debt and interest; and one A. Levi joined with them in the execution of the written guaranty. The following is the assignment and guaranty:
"For value, we hereby transfer, assign and deliver this bond to Isaac Schwartz, as guardian, together with the mortgage of real estate of even date herewith made to secure its payment, and guarantee payment of the debt and interest; and I, Abe Levi, one of the undersigned also guarantee the payment of the debt and interest aforesaid."
On or about October 27, 1919, Isaac Schwartz, the guardian, executed on the bond a release in writing, as follows:
"I hereby release R.O. Purdy and R.J. Bland, from all liability under the above guaranty." *Page 160
The interest was collected each year by one or more of the guarantors, and paid over to the guardian, Isaac Schwartz; on November 17, 1920, for the first time, default was made in the payment of the annual interest. In the latter part of the year 1921, Isaac Schwartz resigned as guardian, and Raymond Schwartz, his son, was appointed in his stead. Subsequently, this action was commenced upon the bond and for the foreclosure of the mortgage. In the meantime the mortgagor, Ridgeway, had died, and his heirs at law were properly made parties to the action. The plaintiff, taking the view that her original guardian, Isaac Schwartz, was without authority to release the guarantors, Purdy and Bland, and that they were liable for the payment of the debt and interest, also made them defendants in the suit. A. Levi, the other guarantor, having died prior to the commencement of the suit, Selina Levi, as his executrix, was made a party defendant.
By their answer Purdy and Bland set up their release, and Selina Levi, as executrix, by her answer pleaded that the release of Purdy and Bland had operated to discharge, as a matter of law, the other guarantor, A. Levi. The matter was referred to T.H. Stukes, Esq., as special referee. In his report to the Court he held that, as a matter of law, the guardian, Isaac Schwartz, was without authority to execute the release, that the release was null and void, and that Purdy and Bland were liable for the debt and interest under their guaranty; he held further that, as the release of Purdy and Bland was without authority of law and invalid, the defense set up by the estate of A. Levi must fall.
Exceptions were taken to this report by Purdy and Bland and by Selina Levi, as executrix, and the matter was heard by his Honor, Judge Dennis, who, as to these questions, reversed the special referee, holding that the guardian, as a matter of law, had authority, for valuable consideration, to execute the release; that the release was executed for a *Page 161 valuable consideration, and that Purdy and Bland were not liable under their guaranty; and that, two of the guarantors having been released without the other's consent, such release operated, as a matter of law, to discharge the other.
The plaintiff appeals to this Court from the decree of Judge Dennis. There are many exceptions — too many. The main questions are few and may be thus stated: (1) Has a guardian authority to release, for valuable consideration, guarantors on a bond and mortgage belonging to his ward? (2) If he has such authority, is the alleged release in this case supported by a valuable consideration? (3) If the release of Purdy and Bland was valid, did the action on the part of the guardian in releasing them operate to release the third guarantor, A. Levi?
As to the first question, it appears that the holdings of the Circuit Judge are fully supported by authority. It is a well-established rule of law that it is the duty of the guardian to invest the funds of the ward, and that in making such investment he must exercise reasonable diligence and care in order to insure the safety of the investment and to produce an income for the ward.
In 12 R.C.L., at page 1131, we find:
"No duty is more clearly imposed by the very nature and purpose of a guardianship than to invest the ward's funds in such a manner as to produce an income, and unless the Statute expressly requires it, the guardian can make such investments without an order of Court. * * * In making investments the guardian must act in absolute good faith, and with reasonable diligence to insure the safety of the investment. The modern motto `safety first' applies nowhere more strongly than in the investment of trust funds."
See, also, Nance v. Nance, 1 S.C. 209.
In 15 Am. Eng. Ency. of Law, at page 71, we find:
"The guardian has no power to relinquish, abandon, or release, without consideration, any right or interest of the *Page 162 ward, not to bind him by admissions contrary to his interest."
In Capehart v. Huey, 1 Hill's Equity, at page 409, the Court said:
"A guardian, as the officer of the Court of equity, is charged with the preservation of all the rights and interests of the ward. He cannot, however, generally change the nature or diminish the capital of the estate; but with this exception, he is authorized to do any act for the infant which a prudent man in the management of his own business would do."
Of course, a guardian can make a legal satisfaction of a mortgage belonging to his ward upon the payment of the debt in full, and in Werber v. Cain, 71 S.C. 346;51 S.E., 123, it was held that a release or discharge of a mortgage by the guardian served to release the lien of the mortgage in favor of a subsequent mortgagee against the ward, although the mortgage debt had not in fact been paid, there being no evidence of fraud or collusion or notice that the mortgage debt was unpaid. The Court said:
"It is clearly within the apparent authority of the guardian to execute a discharge and satisfaction of a mortgage to him as such, and cause the same to be entered of record, as it is his duty to collect and give acquittance for debts due him as guardian. * * * In the absence of any evidence of fraud, or collusion, or knowledge affecting plaintiff with notice that the mortgage had not in fact been paid, plaintiff had a right to presume that the guardian was not acting in conflict with his duty."
It being true, then, that the guardian may discharge the entire indebtedness and release all securities when the debt is paid in full, it follows that, for valuable consideration he can discharge the indebtedness pro tanto or release a portion of the security. *Page 163
Having reached this conclusion, about which there is little or no contention, we shall now proceed to consider the second question, namely, whether the release executed by the guardian to Purdy and Bland is supported by valuable consideration.
An examination of the record discloses that at the time of the execution of the release by the guardian the indebtedness evidenced by the bond and mortgage had long been due; that money was plentiful and good investments were scarce, that the security for the debt was worth at least $12,000, nearly twice the amount of the loan, and that the investment bore interest at the rate of 8 per cent. per annum, and that such investments, with so high a rate of interest, were difficult to obtain. The bond and mortgage being due, the guarantors had a right, as a mater of law, to pay the indebtedness and have the security assigned to them by the guardian. Under these circumstances, Purdy and Bland, having on hand sufficient money to pay the indebtedness, through Mr. Bland, approached the guardian and stated to him that they desired to either pay the indebtedness and have the securities assigned to them or be released from all liability under their guaranty. The guardian asked to be allowed some time to think the matter over, which was granted, and after consideration, he decided, according to his own testimony, that it was to the best interest of his ward to release Purdy and Bland from their guaranty and retain the investment.
It is clear, then, that there was a valuable consideration flowing from Purdy and Bland to Schwartz, the guardian, through their consent and agreement to be released from the liability under their guaranty rather than to press their legal right to pay the indebtedness in full and take over the much desired investment themselves.
We are satisfied that all parties acted in good faith in the matter; there is no doubt, as is disclosed by the testimony, that the investment without the guaranty was a good one *Page 164 — in fact, it is doubtful whether a better one could have been secured by the guardian at that time — and that if the guardian had then applied to the Court for permission to release the guarantors and be allowed to retain the investment, the Court would have granted the request. And no reason appears why the Court should not give effect now to what it would have done then. It appears to us, under this state of facts, that the guardian was fully justified in releasing the guarantors and retaining the investment.
Therefore, we conclude: (1) That the Circuit Judge was right in holding that a guardian has authority, as a matter of law, to execute, for valuable consideration, a release of security; and (2) that, as the release in question was for a valuable consideration, Purdy and Bland were discharged from all liability under their guaranty.
The only other question to be considered is whether the act of the guardian in releasing Purdy and Bland also operated to release Levi. The answer to this question must be in the affirmative.
In Massey v. Brown, 4 S.C. 85, the Court said:
"At law, a discharge of one surety by the creditor will bar a recovery against all in the like relation to the debt. Burgeon Suretyship, 156; Nicholas v. Revell, 4 Ad. Ell., 675. The same rule will generally prevail in equity. The argument before us, insisting on a contrary doctrine, relies for its support on Ex parte Gifford, 6 Ves., 805, in which Lord Eldon held that the discharge of one surety did not release the other sureties, and although Mr. Justice Story, in note to page 572 of his first volume on Equity Jurisprudence, interposes to defend the distinguished chancellor from the strictures to which his decision has been subjected, it must be admitted that his conclusion has not been accepted as the ruling authority on the question."
However, it was pointed out in that case that equity will construe a release according to the intent of the parties, and *Page 165 that parole evidence is admissible to show such intent. The Court said:
"It is certainly in strict consistency with the doctrine of equity, which always seeks, if possible, to give effect to the intent which induces the act, if it can be ascertained without a violation of the rules of law."
Under this rule of construction, in equity the discharge of one surety operates to discharge all others "in the like relation to the debt," unless it be shown by competent testimony that the parties intended otherwise. It is clear that in the present case the governing purpose of the guardian in the whole transaction was to save the investment for his ward, and there is nothing in the record to indicate that the parties intended that the release should not extend, according to the general rule, beyond Purdy and Bland and discharge the other guarantor. It follows that when the guardian executed the release to Purdy and Bland, it operates, as a matter of law, to discharge the other guarantor, and that the Circuit Judge was correct in finding and holding that the estate of Levi is in no way liable.
These conclusions render unnecessary the consideration of the other and minor questions raised by the exceptions.
The judgment of this Court is that the judgment of the Circuit Court be affirmed.
MR. CHIEF JUSTICE WATTS, and MESSRS. JUSTICES COTHRAN, BLEASE, and CARTER, concur.
MESSRS. JUSTICES COTHRAN and BLEASE: In concurring we wish to express our very high commendation of the conduct of the present guardian, son of the former, in his efforts to protect the interests of his ward, despite the filial and financial considerations which would naturally have inclined him to a contrary course.
On Petition for Rehearing
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