May v. Duke

BRICKELL, C. J. The settlement made by the guardian in 1857, was a partial or annual, and not a final settlement. The decree rendered would not have authorized the issue of an execution, nor supported an appeal. The only effect of it was as evidence of the state of the guardian’s accounts at the time. It was prima facie evidence, (if regularly made), that the guardian was not then chargeable with .any greater sum of money, than was - charged against her, and was entitled to all the credits embraced in the account. On final settlement its correctness was disputable, and it would have been competent for either guardian or ward to have shown its incorrectness in any respect. It was not a bar to the present bill, filed by the ward after her majority, to compel a settlement of the guardianship. A settlement of a guardianship, partial or final, is irregular, unless the infant ward is represented by a guardian ad litem. But of the irregularity, neither the guardian nor his sureties can take advantage. As to them the settlement is as binding and conclusive, as it would have been, if the guardian, who is bound to conduct the settlement regularly, had not proceeded until there was an appointment and appearance by a guardian ad litem. — Hutton v. Williams, 60 Ala. 107; Lewis v. Alred, 57 Ala.--. It is questionable whether in the absence of statutes authorizing it, a guardian had authority to loan the monej^s of his ward on personal security merely. Whether he had or not, it is certain, that if he made a loan without any other security than the personal obligation of the borrower, he incurred a liability to the ward for the money loaned, though the borrower was of undoubted credit and solvency. — Lee v. Lee, 55 Ala. 590. The statutes expressly declare that “‘he must, if practicable, lend out all surplus money of the ward on bond and mortgage, or on good personal security.” — Code of 1876, § 2773. Therefore, when the guardian, without [57] taking security of any kind, loaned the money of the ward, a devastavit was committed, rendering her and her sureties liable. From this liability she could not be discharged by a subsequent collection of the debt from the borrower. It was within the election of the ward to treat the original loan as a conversion of the assets, or to ratify it as a proper administration. Of the right of election, she could not be deprived by the act of the guardian. The only Confederate treasury-notes received by the guardian were received on this unauthorized loan, and they were not assets of the ward’s estate. Walls v. Grigsby, 42 Ala. 473. While we have no inclination to depart from our repeated decisions, that a trustee who in good faith, and in the exercise of reasonable diligence, received Confederate treasury-notes, in satisfaction of debts due him in his representative capacity, while they were the circulating medium, and usually employed in the payment of debts, and the transaction of business, is not liable for a devastavit, merely because they were rendered worthless by the results of the war; they can not be, and have not been extended so far, that the trustee will be exonerated from liability for a conversion, by receiving them from a borrower to whom he had made an unauthorized loan of trust moneys. The conversion involves him in liability, from which he can not be relieved until satisfaction is made to the cestui que trust. The debt contracted by the borrower is his individual property, unless the cestui que trust elects to treat it as assets, and when the trustee collects it, in the absence of an election by the cestui que trust, it is his own debt he collects. While there is nothing in the pleadings and evidence, which can raise a doubt as to the good faith of the guardian, and of the borrower from her, good faith alone will not excuse. Good faith and reasonable diligence, must be united with the observance of duty and authority as declared by law. If these are violated, however just and pure may be the intention, and however discreet the act, a liability results for all losses which may ensue. A guardian is entitled to a credit only for moneys actually expended for the ward, or for necessaries he may actually supply. The onus of proof is upon him, and no credit can be allowed him, whether it be for money expended, or necessaries supplied, unless the evidence is of that character, which would support an action at law, if the guardian was suing the ward, in an action ex contractu. — Hutton v. Williams, supra, and authorities cited. Applying this principle to the exceptions to the report of the register,' they were properly overruled. [58] But in decreeing that in the first instance execution should issue against the appellant, rendering him primarily liable, and relieving his co-surety from the common burthen imposed by the bond, the chancellor ei’red. The rule of practice is, that a defendant to obtain relief against a co-defendant, must resort to a cross-bill. — 3 Dan. Ch. Pr. 1743. If an equity exists which compels the appellant to bear the bur-then of the common obligation, in ease and in exoneration of his co-surety, it is not the office of a petition, but of a cross-bill, to present it for the judgment of the court. In this respect, the decree of the chancellor must be reversed and annulled, but in all others it is affirmed.