Mason v. Buchanan

BRICKELL, C. J. It is not necessary to pass severally on the various objections to evidence, shown by the bill of exceptions. There was sufficient evidence of the acceptance of the deed by the guardian of the appellant, and as it was acknowledged and recorded according to the statute, a transcript of the record, without producing the original, was evidence for the appellee. — Code of 1876, § 2154. Though the recital of the consideration was money paid, there was no objection to parol evidence that it was not money, but the extinguishment of a debt of the grantor. The two considerations are of the same kind and degree, and in the absence of fraud, either may be shown as the real consideration. — Eckles v. Carter, 26 Ala. 563 ; Hair v. Little, 28 Ala. 236. The decree having been rendered in favor of the guardian, he was charged with the duty and authority of collecting it, as he was of all other choses in action of the ward. Over [112] the personal assets of a ward, a guardian had at common law a large authority. He could sell or transfer them, and those dealing with him fairly and justly, were protected though his intent was fraudulent, or he may have been negligent in the exercise of his authority. — Fields v. Schieflin, 7 Johns. Ch. 150 ; Bank of Virginia v. Craig, 6 Leigh, 428 ; Woodward v. Donally, 27 Ala. 198. The statutes have, in some respects, abridged the power of the guardian to sell the personal assets, requiring that sales shall be made under orders or decrees of the Court of Probate from which he derives his appointment, but they have not diminished his power to collect or discharge the choses in action of the ward. As to these, he may exercise the power which an executor or administrator may exercise over choses in action, coming to his hands for administration. A want of diligence in the exercise of the power will render him liable, but third persons dealing with him in good faith, are not the guarantors of his prudence ; they answer only for their own fair dealing. Circumstances may require that he should accept in payment, property, real or personal, to save the ward from loss. There is no want of power on his part, and if those who • pay him act in good faith, the debt is as fully discharged as if the payment had been made in coin. When real estate is accepted by a guardian in payment of a debt due the ward, it is not regarded as a conversion of personal into real assets, but rather as an expedient or mode of collecting a debt. — Foscue v. Lyon, 55 Ala. 440. Whether such expedient should be adopted, rests in his discretion. If adopted, it is at the peril of vindicating it, if the ward should subsequently question the propriety of his conduct. Bonds with sureties are required of him to protect the ward against his improvidence, as well as his willful misconduct. But whether he is diligent or not as to the debtor, if he is guilty of no fraud, or collusion, the debt is discharged.— Warring v. Lewis, 53 Ala. 662. In the present case there is no room for the imputation of fraud or collusion, to the guardian or debtor; nor are facts shown which Would charge the guardian with a want of diligence. The Court of Probate did not, consequently, err in holding that the decree was satisfied to the extent that the conveyance of the real estate was accepted as satisfaction. The evidence, however, most strongly tends to show that the conveyance was executed not solely in payment of the decree in favor of appellant, but in payment also of a similar decree in favor of his sister, Francis W., of whom B. W. Mason was at the time guardian. There is no evidence that the latter decree was otherwise paid, and the guardian seems to have rented the real estate after its conveyance, as he did [113] other real estate held jointly by the appellant and his sister. Without evidence that the conveyance was accepted solely in satisfaction of the decree in favor of the appellant, the court should not have applied exceeding one-half of the consideration to the payment of that decree. For this error the decree must be reversed and the cause remanded.