Coleman v. Davies

Montgomery, Judge. The sole question necessary to be considered in this case is whether, under the facts, the note given by Davies to Coleman was a novation of the original debt, and destroyed its fiduciary character, so as to take it out of the operation of the 33d section of the Bankrupt Act of March 2, 1869, and allow the discharge in bankruptcy of the defendant to release him from the debt. We think that sections 2811 and 2827 of the Code, under the facts, make the acceptance of the note a novation, and destroy the fiduciary character of [493] the debt. Our judgment, therefore, is, the taking of the individual note under seal of a guardian, by the husband of the ward, in settlement of the guardian's account, which note is payable to the husband as trustee of his wife, and a receipt in full by husband and wife to the guardian, whereby they release him “ from any and all liability growing out of or connected with said guardianship,” and the further fact that the marriage settlement, under which the husband is trustee, limits the property settled (of which the note is part) to the wife for life with remainders over, is a novation of the original debt of the guardian, and destroys its fiduciary character. And if parol evidence be introduced to show that the parties really intended to discharge the guardian as such, and the Judge, by his charge, leaves the question of discharge to the jury, and they find in the affirmative, this Court will not disturb the verdict. Judgment affirmed.