Torrey v. Black

By the Court, Mullin, P. J. Cutting and carrying away timber, by a guardian, from his ward’s land, is waste, unless it is required for the erection or repair of fences or buildings, or good husbandry requires its re [416] moval, either because the land on which it stands is required for cultivation, or to prevent loss by decay or other cause beyond the control of the' guardian. (McPherson on Infancy, 299-303.) The guardian in this case did not remove the timber, but permitted the defendant to do it. Unless she had authority to cut the timber herself, she could not authorize another to do it. In Bacon’ s Abr. tit. Waste, 442, it is said that no action of waste lies against a guardian in socage, but an account or trespass. Several authorities are cited to the contrary. The Revised Statutes (3 R. S. 621, § 1, 5th ed.) provide that if any guardian &c. shall commitwaste during their several estates, of the houses, gardens, orchards, lands or woods, or other thing belonging to the tenement so held, without a special or lawful authority so to do, he shall be liable to an action of waste. And by 3 R. S. 624, § 1, 5th ed., an action of trespass lies against any person who, without leave, cuts and carries away timber from the land of another, with treble damages. Besides these remedies, the ward may call on the guardian to account, in equity, for the timber taken. When waste is committed by a stranger, while the guardian is in possession of the ward’s land, the guardian is not liable for such waste.. (Bacon's Abr. tit. Waste, p. 447.) If the guardian is not liable for the waste committed by the defendant, she would not be liable in. trespass ; as mere consent that the defendant might commit the trespass would not make her a trespasser. Had the timber been cut by her order, or at her request, so that the wrongdoer was acting as her agent, or in conjunction with her, in doing the unlawful act, the guardian would be liable. (1 Chitty’s Pl. 208.) If the guardian is not liable for the injury done in cutting the timber, the defendant must be, unless the [417] license from the guardian protects him. As the plaintiff could not sue during his minority, he may sue on attaining his majority, unless precluded by some act of his guardian. [Fourth Department, General Term, at Buffalo, June 3, 1873. Mullin, Talcott and M. D. Smith, Justices.] The offer to prove by paroi a license from the guardian to cut timber was properly rejected. She had no authority to give such a license, and being by paroi, it was void if given. (McGregor v. Brown, 10 N. Y. 114, and cases cited.) The release was properly rejected. It was without consideration; nothing was paid by the defendant; and it does not appear that the defendant had any claims against, the plaintiff at the time the release was executed, and which the defendant pretended to release, that could furnish a consideration for the release of the defendant. The general rule is that a guardian can do nothing to prejudice the rights of his ward. (Jackson v. Sears, 10 John. 435, 441.) It was incumbent on the defendant to prove the facts that must be established to make the release operative against the plaintiff. The declarations of the plaintiff do not show a ratification by him of the acts of his mother. They are altogether too loose and unsatisfactory to be allowed to have such effect. The judgment must be affirmed.