Reed v. Hedges

Haymond, Judge, delivered the opinion of the Court: I understand from the decrees of the circuit court made in this cause on the 28th day of April, 1876, and on the 15th day of November, 1876, that that court held and decided in and by said decrees that the defendant, Spohr, cannot in this suit be held liable, as security for the defendant Hedges in the bond, for the proceeds of the real estate sold under the decree of the circuit court of Jefferson county in the bill mentioned, but that he (Spohr) is bound as security in the guardianship bond proper (that is to say the original guardian-bond), as guardian of Lucy G. Reed and Mary C. Roper, and that the annually accruing interest on the sums paid to said Hedges by James Logie, special commissioner in the case of Wm. G. Butler and others against Wm. L. Hedges and others in the proceedings — 187 — referred to, ought to be charged as against said guardian, the same of course binding his surety in said original guardian’s bond, and that said Spohr as security for Hedges on said original bond is not liable for the proceeds of the sale of said real estate belonging to said wards, which was received by said Hedges from special commissioner Logie; and also that said Spohr cannot be held and decreed against in this suit, as the surety of said Hedges in the second or last bond, for the proceeds of the sale of said real estate- which Hedges received from said Logie. But I do not understand from said decrees, that said court decided the question, whether the said second or last bond was valid and binding on its face upon Spohr as security or not. In other words, the circuit court seems to have been of opinion and to have decided, that the said security (Spohr) in the said original guardian’s bond could not be held liable in this suit upon said original bond for the proceeds of the sale of said realty received by him as aforesaid, but only for said interest thereon received by him from said Logie, special commissioner, and that the plaintiffs could not charge the defendant, Spohr, as surety in this suit upon the said second and last bond for the proceeds of the said realty, whether said second and .last bond was Valid or not. And the decree of the 17th day of November, 1876, which dismissed the plaintiffs’ bill, was based upon the principles settled in the said decrees of the 28th of April, 1876, and the 15th day of November, 1876, and carried those principles so settled into practical effect. The errors assigned by the appellants to the said decides are substantially as follows : “1st. The demurrer filed to the bill by the defendant Spohr should have been overruled in toto’and not sustained as to any relief prayed, because the second bond was in point of fact as well as in fact a guardian’s bond executed as an additional security to the first, and the suit being for a settlement of the guardianship accounts and for a recovery of the balance due, it was proper to bring all the sureties — 188 — before the court. 2d. Even supposing the second bond' not a guardian’s bond, a supposition impossible from the record in this case, but some other kind ot a bond, a special commissioner’s bond, it was necessary that the obligors should be before the court in this case, because it was upon the execution of this bond that Hedges got possession of the fund, and in tracing the fund,it is absolutely necessary that he and his suiety should be before the court. But whether the demurrer was sustained or overruled is immaterial to the merits of this case, because it is admitted on all hands that the first bond is a guardian’s bond, and by reason of this bond the appellants were entitled to a decree for the balance ascertained to be due them by Commissioner Brooke as against both Hedges and his security, Spohr.” To determine the questions decided in the circuit court in this cause satisfactorily, it is essential to first consult and ascertain what is our statute-law bearing upon the subject. This I will first endeavor to do, and then will proceed to the determination of the questions arising, so far as material or necessary to decide in this cause as the same now stands. The seventy-ninth chapter of the Code of 1868 of this State,which is upon the subject of partitions and coterminous owners, <fec., provides in the third section thereof, that “when partition cannot be conveniently made, the entire subject may be allotted to any party who will accept it and pay therefor to the other parties such sums of money as their interest therein may entitle them to; or in any case now pending or hereafter brought, in which partition cannot conveniently be made, if the interest of those who are entitled to the subject, or its proceeds, will be promoted by a sale of the entire subject, or allotment of part and sale of the residue, the court, notwithstanding any of those entitled may be infants, insane person, or married woman, may order such sale, or such sale and allotment, and make disposition of the proceeds of sale according to the respective rights of those entitled, taking — 189 — care, when there are creditors of any deceased person who was a tenant in common, joint tenant or co-parcener, to have the proceeds of such deceased person's part applied according to the rights of such creditors. The court making an order for sale shall, wheD the dividend of a party exceeds the value of $300.00, if such party be an infant or insane person, require security for the faithful application of the proceeds of his interest, in like manner as if the sale were made under chapter eighty-three.” The second section of chapter eighty-three provides, that “ if the guardian of any minor, or the committee of any insane person, think that the interest of the ward will he promoted by a sale of his estate, or estates in which he is interested with others, infants or adults; or if the trustee of any estate or any person interested in any estate in trust, whether he be interested with others or not, think the interest of those for whom the estate is held wrill be promoted by a sale thereof, such guardian, committee, trustee or company, whether the estate of the minor or insane person, or any of the persons interested, be absolute or limited, and whether there be or be not limited thereon any other estate, vested or contingent, and whether guardian, committee or trustee or the minor, insane person, or any of the persons interested, reside in this State or not, may for the purpose of obtaining such sale file a bill in equity in the circuit court of the county, in which the estate proposed to be sold or some part thereof may be, stating plainly all the estate, real or personal belonging to such infant or insane person, or so held in trust, and all the facts calculated to show the propriety of the sale. The bill shall be verified by the oath of the plaintiff; and the infant or insane person, or the beneficiaries in said trust and the trustee (when not plaintiff) and all others interested shall be made defendants.” The fifth section of the same chapter provides, that “if it be clearly shown, independently of any admissions in the answers, that the interest of the infant, insane per — 190 — son, or beneficiaries in the trust, as the case may be, will be promoted, and the court be of opinion that the rights of no person will be violated thereby, it may decree a sale of said estate, or any part thereof, taking for the purchase-money, when the sale is on a credit, ample security, and if the sale be of real estate, retaining a lien thereon. The sixth section provides, that “at such sale the guardian ad litem, or committee or trustee, shall not be a purchaser, directly or indirectly.” The seventh section provides, that “the proceeds of sale shall be invested under the direction of the court for the use and benefit of the persons entitled to the estates, and in the case of a trust-estate, subject to the uses, limitations and conditions contained in the writing creating the trust. But into whosoever’s hands the said proceeds may be placed, the court shall take ample security, and from time to time require additional security, and make any other proper orders for the faithful application of the fund, and for the management and preservation of any property or securities in which the same may be invested, and for the protection of the rights of all persons interested therein, whether such rights be vested or contingent.” Section eleven provides, that “ what may be received under this or the seventy-ninth chapter for the real estate of an infant or insane person, sold or divided, or so much thereof as may remain at his death intestate, shall, if he continue until his death incapable of making a will, pass to those who would have been entitled to the land if it had not been so sold or divided.” This chapter then proceeds to provide summary proceedings for the sale of the property of minors. The twelfth section provides, that “ In addition to the proceedings authorized by the second section of this chapter, the guardian of any minor, if he deem that the interest of his ward will be promoted by a sale of his estate, or of any estate in which he with others, infants — 191 — or adults, .is interested, whether the estate of the minor, or of any oí the other persons interested be absolute or limited, and whether there be or be not limited thereon any other 'estate, vested or contingent, may apply by petition, in a summary way, to the circuit court of the county in which the estate proposed to be sold, or some part thereof, may be, describing all the estate, real and and personal, belonging to the minor, and stating plainly all the facts calculated to show the propriety of the sale. The petition shall be verified by the oath of the plaintiff; and the minor and all others interested shall be made defendants, and ten days’ notice shall be given to such defendants before such petition can be heard.” The fourteenth section provides, that “if it be clearly shown by the petition, exhibits and evidence adduced, that the interest of the minor will be promoted by the sale, and the court be of the opinion that the rights of no person will be affected thereby, it may order a sale of the estate, or any part thereof, either public or private, on such terms and in such parcels as may be deemed most beneficial to the minor, taking from the purchaser bond with ample security, when the sale is on a credit. At such sale neither the guardian nor guardian ad litem shall be a purchaser directly or indirectly. But no estate of any minor shall be sold contrary to the provisions of any will or conveyance by which such estate was devised or granted to the minor.” The fifteenth section provides, that “ before such sale is made, the guardian shall in open court enter into bond, with approved security, in a penalty equal to double the value of the estate to be sold, conditioned for the faithful application of the proceeds of sale. Such bond shall be payable to the State, and the court may thereafter order new bond with other security to be given, if deemed necessary.” The sixteenth section provides, that “ the provisions of section seven shall govern as to the application of the proceeds of sale. The costs of proceedings may be paid — 192 — out suc^ proceeds, but no attorney’s fee shall be taxed therein.” The seventeenth section provides, that “whenever a guardian makes sale of any estate as herein provided, he may be authorized by the court to execute to the purchaser upon payment of the purchase-money a .conveyance with covenant of special warranty, or the court may order such sale to be reported for confirmation, and when confirmed, direct such conveyance to be made by the guardian or a commissioner. Every such conveyance shall be as effectual in law as if the same were made by the minor when of lawful age.” Hedges appeal’s to have been appointed guardian of the plaintiff’s, by the recorder of Jefferson county on the 14th day of November, 1.866, under and by authority of an act of the Legislature of this State. This was done prior to the time the Code of 1868 of this State took effect. The Code of 1868 took effect on the 1st day of April, 1869. The third section of chapter eighty-two of the Code of 1868, provides that/‘the recorder of any county in which any minor resides, or if he be resident out of the State, in which he has any estate, may appoint a guardian for him, unless he have a guardian appointed as aforesaid by his father.” The filth section provides, that “every guardian, unless in the case of a testamentary guardian the will otherwise directs and the recorder in such case deems it unnecessary for the safety of the ward, shall give bond to be approved by the recorder by whom he is appointed, or before whom he accepts the trust, in such penalty as shall be prescribed by the recorder. If any recorder omit to require such a bond, or accept such person as surety or sureties as do not satisfy him of their sufficiency, the recorder so in default shall be liable to the ward for any damages he may sustain thereby.” Section six provides, “that until a guardian shall have given bond, the recorder may from time to time appoint — 193 — a curator, who shall give bond as aforesaid, and during the continuance of his trust have all the powers and form all the duties of a guardian, and be responsible in the same way ; but the recorder in his discretion may dispense with his giving security.” Section seven provides, that “every guardian who shall be appointed as aforesaid, and give bond, when it is required, shall have the custody of his ward, and the possession, care and management of his estate real and personal, and out of the proceeds of such estate shall provide for his maintenance and education. But the father of the minor, if living, and in case of his death the mother, while she remains unmarried, shall, if fit for the trust, be entitled to the custody of the person of the minor, and to the care of his education. And unless the guardian shall sooner die, be removed or resign his trust, (which the circuit court that appointed him, or if he was appointed by the recorder, then the recorder of the county in which he was appointed, may allow him to do), he shall continue in office until the minor shall attain the age of twenty-one years, or, in the case of a testamentary guardianship, until the termination of the period limited therefor. At the expiration of his trust he shall deliver and pay all the estate and money in his hands, or with which he is chargeable, to those entitled thereto.” Section thirteen provides that “ the circuit courts in chancery may hear and determine all matters between guardians and their wards, require settlements of the guardianship accounts, remove any guardian for neglect or breach of trust, and appoint or order another to be appointed by the recorder in his stead, and make any orders for the custody and tuition of an infant, and the management or preservation of his estate. Recorders shall have like authority as to removals and appointments, and as to the custody and tuition of the infant, and the management and preservation of his estate, in — 194 — cases where the guardian or curator was appointed' or qualified by or before them.” Having now cited and referred to the statutes bearing upon and tending to throw light upon the question to be determined in this cause, I proceed to enquire and determine, first whether the bond given in this case before the recorder by Hedges as guardian with Spohr as security is upon its face a valid bond. The condition of this bond does not state the appointment of the guardian. Hoes this invalidate the bond ? It seems a guardian’s bond is not invalid, because the condition does not state the appointment of the guardian. Call v. Ruffin, 1 Call 289; Pratt v. Wright et al., 13 Gratt. 175. One guardian’s bond may be taken for two infants, as was done in the case at bar. Call v. Ruffin, 1 Call 289. The condition of the bond in the case at bar is more full than that in the case last cited and also the case of Pratt v. Wright et al., 13 Gratt. 175. In the last named case it was held, that “ a guardian’s bond contains a covenant to indemnify the justices constituting the court at the time it was taken. Although this is not required by the statute, it does not avoid the bond.” Although the condition in a guardian’s bond is not as extensive as the statute requires, yet as it relates to a part of the duty of the guardian, the bond is not void, but binds the oblig-ors to the extent of the condition. Pratt v. Wright et al., 13 Gratt. 175. Gibson v. Beckham et al., 16 Gratt. 321, where the whole subject and Virginia cases are reviewed by Judge Allen. When a court or officer has authority or capacity to take a bond and makes a mistake by omitting some condition prescribed, or inserting a condition not authorized or illegal, unless the statute by express words, or necessary implication, makes it wholly void, the bond is not void ; the good shall not be vitiated by the bad, and the bond may be sued on, so far as the conditions are good, as astatutory bond. See the two cases last cited and also the said case of Call v. Ruffin, 1 Call 289; Barnum et al. v. — 195 — Frost’s adm’r et al., 17 Gratt. 398, 408, 409; Holliday’s ex’rs. v. Myers et al., 11 West Va. 276. There is no solid distinction between bonds and other deeds containing conditions, covenants and grants not mala in se but illegal at the common law, and those containing conditions, covenants or grants illegal, by the express prohibition oi statutes. In each case the bonds are void as to the conditions, covenants or grants that are illegal, and are good as to all others which are legal and unexceptionable in their purport. The only exception is, when the statute has avoided the whole instrument to all intents and purposes by express words or necessary implication. See cases last above cited, also United States v. Bradley 10 Pet. 343, and Aylet v. Roane, 1 Gratt. 282. The first bond in the case contains a condition “to keep harmless the said recorder of Jefferson county, as also to keep harmless the said recorder, his and every one of his heirs, executors and administrators from all trouble and damage that shall or may arise about the said estate.’’ This condition or covenant, though not required by the law to be inserted in the guardian’s bond, does not avoid the bond as to the other material and legal conditions therein contained. Upon the whole under the authorities cited it seems to me that the material conditions in said bond, barring those as to the recorder, are valid and obligatory as to the guardian and his said security who executed the same. The second bond which bears date the 19th day of April, 1869, and seems to have been executed before the clerk of the circuit court under and in pursuance of the decree of the circuit court of Jefferson county, made in the ease of William G. Butler et al., plaintiffs v. William L. Hedges et al., defendants, to which the plaintiffs in the cause at bar were parties, though at that time infants. The penalty of this bond is $6000.00, the amount prescribed in the said decree, which is the same as that con-ained in. the first bond. And the conditions of this. — 196 — bond are also substantially the same as the first, except *hat the “ circuit court of Jefferson county” and the “ said circuit court ” are substituted for the “recorder of Jefferson county” and the “said recorder.” And the same persons according to the allegations of the bill executed each of said bonds, although the name of the security is spelt differently in different places. It is argued by the counsel of the defendant, Spohr, that the said second bond is invalid, and, if valid for any purpose, no recovery can be had in this suit thereon against said security. Is said second bond invalid for any purpose as against said surety? This involves an important and deeply interesting question : Had the circuit court the power to take, or authorize its clerk to take, such a bond? Certainly that court, under the said third section of chapter seventy-nine, and seventh section of chapter eighty-three, and the thirteenth section of chapter eighty-two of the Code of 1868 (which took effect on the 1st day of April, 1869, a few days prior to the execution of said second bond), had jurisdiction and authority to designate into whose hands the funds under its control, belonging to the infants, should be placed, and to make orders for the management and preservation thereof. In the case of Talby et al. v. Starke’s admr’x et al., 6 Gratt. 339, it was held according to the third clause of the syllabus, that “It is not necessary, in the decree for the sale of the land, to direct that the guardian shall give security under section twenty of this act, 1 Rev. Code, ch. 108, pp. 409-10.” The proceedings in that case were commenced by a guardian by bill under provisions of said last named chapter of 1 Rev. Code of 1819, which in all material re-specls is similar to the provisions of the second, third, fourth, fifth and seventh sections of chapter eighty-three of the Code of 1868, as to guardians and infants and the sale of the real estate of infants and the proceeds of the sale thereof. The twentieth section of said ch. 108, 1 Rev. Code, pp. 409-10, provides that the proceeds of — 197 — such sale shall be vested and applied for the benefit of the infant, either in the purchase of other real estate, in such other manner as the court shall think best; but into whatever hands the proceeds of the sale may be placed, the court shall require ample security that they shall be faithfully applied in such manner as the court may direct.” The seventh section of chapter eighty-three of said Code of 1868 is copied from the Code of Virginia of 1849, which, as to the proceeds of the sale of real estate of infants, took the place of the said twentieth section of saidch. 108, 1 Rev. Code of 1819, except perhaps the powers conferred upon the court may be more extensive which doubtless arose to a great extent from uniting the estates of insane persons and trust-estates in said section two of chapter eighty-three with those of infants in providing a remedy in equity for the sale thereof. In the case in 6 Gratt. last referred to the court appointed a special commissioner to sell the laud of the infants, &c., upon a credit. The special commissioner made his report of sale, to which there were exceptions filed by purchasers at the sale, and the fourth of these exceptions was as follows, viz : “Because the guardian of the infants had not executed bond for the safe keeping of the money of their wards.” The court in April, 1848, overruled the exceptions to the commissioners report, and confirmed the same; and directed the commissioner to proceed to collect the purchase-money, and deposit the same in one of the banks in Richmond to the credit of the cause, subject to the future order of the court. And the decree provided that no part of,tbe moneys, thus to be deposited, should be drawn or paid to the guardian of the infant parties, until she executed bond in double the amount to be received by her as such guardian, payable to the governor and his successors, with such security as the court should approve with condition according to law. Judge Baldwin delivered the opinion of the court and at page three hundred and forty-eight he says ; “As to the proceedings in the cause, — 198 — prior to the sale, the court is of opinion that there was irregularity. * * And there was no necessity or propriety for a provision in the decree of sale, as a condition thereof, that security should be given, under the twentieth section of the statute, 1 Rev. Code 410, for the application of the proceeds; inasmuch as the sale was to be on a credit, payments to be secured by the purchaser, and the persons into whose hands they would thereafter come liad not been then ascertained.” This is all Judge Baldwin (who delivered the opinion of the court)* says upon the subject; and there is no intimation whatever that the court erred in authorizing the proceeds to be paid to the guardian upon his giving security, &c., but, it seems to me, if any inference is to be drawn from the case, it is that the court below did not err in that respect. In the case of Cooper v. Hepburn, et al., 15 Gratt. 551, Judge Daniel in delivering the opinion of the court at pages five hundred and sixty-three and five hundred and sixty-four says: “Doubtless one of the leading objects in conferring the power in question upon the guardians and the court, was to enable the former more fully to provide for the support, maintenance and education of their wards.” Mr. Story, in the second volume of his Equity Jurisprudence, section one thousand three hundred and thirty-four, says: “Assuming, then, that the general care and superintendence of infants did originally rest in the crown, when they had no other guardian, the question by whom, and in what manner, the prerogative should be exercised, would not seem open to much controversy. Partaking, as it does, more of the nature of a judicial administration of rights and duties in foro conscientice, than of a strict executive authority, it would naturally follow ea ratione, that it should be exercised in the court of chancery, as a branch of the general jurisdiction originally confided to it. Accordingly the doctrine now commonly maintained is, that the general superintendence and protective j urisdiction, of the court of chaneery — 199 — over tbe persons and property of infants is a delegation of the rights and duty of the crown ; that it belonged to that court and was exercised by it from its first establishment; and that the general jurisdiction was not even suspended by the statute of Henry VIII, erecting the court of wards and livery.” At section one thousand three hundred and thirty-seven, same volume, Mr. Story says: “ But whatever may be the true origin of the jurisdiction of the court of chancery over the persons and property of infants, it is now conceded on all sides to be firmly established and beyond the reach of controversy. Indeed it is a settled maxim, that the King is the universal guardian to infants, and ought in the court of chancery to take care of their fortunes,” &c. And in section one thousand three hundred and thirty-eight Mr. Story says: “In the first place, in regard to the appointment and removal of guardians, the court of chancery will appoint a suitable guardian to an infant, where there is none other, or none other who will or can act, at least where the infant has property,” &c. At section one thousand three hundred and thirty-nine, same volume, Mr. Story says further: “ In the next place, as to the removal of guardians, the court of chancery will not only remove guardians appointed by its own authority, but it will also remove guardians at the common law, and even testamentary or statute guardians, whenever sufficient cause can be shown for the purpose. In all such cases the guardianship is treated as a delegated trust for the benefit of the infant; and, if it is abused or in danger of abuse, the court of chan-' eery will interpose not only by way of remedial justice but of preventive justice. When the conduct of the guardian is less reprehensible, and does not require so strong a measure as a removal, the court will, upon special application, interfere and regulate and direct the conduct of the guardian in regard to the custody, and education, and maintenance of the infant; and if neces200 saiTi ^ will inhibit him from carrying the infant out of country, and it will even appoint the school where shall be educated. In like manner, it will, in proper cases, require security to be given by the guardian, if there is any danger of abuse or injury to his person or to his property.” The fifteenth section of chapter eighty-three of the Code of 1868 certainly contemplates, that when the guardian makes the sale, the proceeds of the sale may by order or decree of the court come into the hands of the guardian. If not, why require the guardian to enter into bond with approved security in a penalty double the value of the estate to be sold, conditioned for the faithful application of the proceeds of the sale, &c., as in that section is provided. And it seems to me that under a fair construction of the last clause of section three of said chapter seventy-nine and the eighteenth section of chapter eighty-two, and section seven of said chapter eighty-three of the Code of 1868 it is competent, and in many cases perhaps eminently proper, for the circuit court to direct the proceeds of realty in a case of partition brought under said seventy-ninth chapter to be placed by the court in the hands of the guardian as such of the infant or infants to whom the same belongs. And I think the circuit court in taking bond with security under the last named section may take the bond from the guardian as guardian ; but perhaps this is not indispen-sible. The ease of Lloyd et al. v. Commonwealth to use, &c., decided by the Supreme Court of Pennsylvania, March 11,1878, and reported in the “Peporter” of June 19, page 758, was an action on a guardian’s bond to the use of a substituted guardian of the minors. The facts, as agreed in a case stated, were as follows: In 1867 Lloyd was duly appointed guardian of certain minors and entered security in the sum of 140,000.00, with J. K. and J. B. Morehead and another, who was not served in the action, as sureties. Subsequently to the appointment of Lloyd, — 201 — in 1872, certain realty belonging to the minors’ estate, which had come to them by descent, was ordered to be sold by proceedings in partition, and on petition the orphans’ court ordered the proceeds to be paid to Lloyd, directing additional security therefor in the sum of $5,000.00, which was duly entered with one Coke, as surety. Lloyd was afterwards discharged by the orphans’ court and a ' substitute appointed. His account being filed, the court found the sum of $25,049.00 due to the minors. No part of the money was ever paid over by Lloyd. By the terms of the case stated, if the court was of opinion that the guardian’s sureties were liable for all the moneys which came to the guardian’s hands, then judgment to be entered for the plaintiffs for $25,352.36 with interest-but if of opinion, that the sureties were only liable for the amount received from the administrator of the estate from which the minors' derived their property, and not for that which was received by the guardian from the sale of the real estate, and for which separate security had been entered, their judgment to be entered for $20,466.40, with interest, &c. The court below entered judgment for the larger sum. The defendant assigned for error the judgment of the court. Paxton, Judge, delivered the opinion of the court aud in the abstract of the opinion appearing in “The B,e-porter ” said: “ The record brings up the single question, whether the sureties on the official bond of a guardian, given at the time of his appointment, are responsible for the money of his ward under proceedings in partition, where such sale was not made by the guardian, but the proceeds were received by him. It has never been doubted that the sureties are responsible for the personal estate to which the ward became entitled subsequently to the appointment, when the same has been received by the guardian. The appointment vests in the guardian all of the personal estate, to which the ward was entitled at that time, and the right to receive any that may subsequently come to the minor. The real — 202 — estate however vests in him only to the extent of enabling him to take possession of it and collect the rents. He cannot sell it without the order of the orphans’ court. Hence in fixing the amount of a guardian’s security, it is usual and proper to take into consideration the amount of the personal estate and the rental of the real estate. In the case in hand the sureties admit their liability as to all except the proceeds of the real estate. As to this they contend they are not liable, for the reason that special security was entered therefor by the order of the orphans’ court. The question for determination is, whether the' second bond was in exoneration of the original as to such proceeds, or was merely cumulative or additional security; or to state the proposition in another form, were the sureties on the original bond liable for the proceeds of the real estate, and if so, were they exonerated by the giving of the second bond? The latter was not given in obedience to -any act of assembly. Act March 29, 1832, § 8, (P. L. 191, Par. Dig. 412, pi. 40), provides 'that the orphans’ court having jurisdiction, whenever that court may deem it proper, may require a bond with good and sufficient security from every guardian of a minor.’ Under this it is clearly competent for the court, not only to require a bond with security, when a guardian is appointed, but also at any subsequent time when in the judgment of the court the interest of the minor requires it. Such contingencies may and often do occur. * * In this ease the guardian was not intrusted to execute the order of sale. That was intrusted to some other person, and he doubtless complied with the law in this respect. In the performance of his duty he paid over to the guardian the shares coming to his ward, and the orphans’ court, in the exercise of a sound discretion, not in obedience to the command of any statute, required additional security. An argument was made based on the supposed analogy between the case at bar and that of an administrator, who sells real estate of a decedent for the payment of debts — 203 — and gives a bond with security for the application of the proceeds. The cases are essentially different; the administrator sells by virtue of an order of court-and is required by statute to give special security. The form of an administrator’s bond differs widely from the bond given by a guardian. The former is to account only for the goods, chattels, and credits of the deceased, while a guardian’s is to “in all respects faithfully perform the duties of guardian.” The condition is very broad and covers all the duties of the guardian, one of which is to account for all the moneys of his ward which may come into his hands. We have not here the case of a guai'dian who has sold the real estate of his ward in pursuance of an order of court and entered special security therefor required by the act of assembly. Whether in such case, the sureties on the original bond of the guardian would be liable for the proceeds is not before us, and is not decided. We think-the learned judgeof the court below was right in ruling that sureties are responsible for the moneys received by the guardian from the sale of the real estate under the proceedings in partition.” It will be observed that the last clause of section three of chapter seventy-nine of the Code of 1868 provides, that “ The court making an order for sale, shall, where the dividend of a party exceeds $300.00, if such party be an infant or insane person, require security for the faithful application of the proceeds of his interest in like manner as if the sale was made under chapter eighty-three.” Now the question very naturally presents itself: what is to be done when the dividend of an infant is less than $300.00, and into whose hands is it to be placed by the court as the property of the infant for his benefit and security? The statutes do not say. It seems, however, that a court of equity under its general powers under the thirteenth section of said chapter eighty-two of the Code may, in the exercise of its discretion, make such orders for the preservation thereof as it may deem best for the infant; and that in doing so, if it is satisfied — 204 — the penalty of the bond of the guardian is sufficient to and secure it, and that the security or securities of the guardian are solvent, it may order the money to be paid to the guardian ; and if received by the guardian, he and his security or securities should be held responsible therefor to the infant upon the guardian’s bond, in so far at least as the penalty of the bond will cover it. Sureties of guardians should be held to have contemplated, at the time of executing the bonds, a possible liability and recovery, whether it be for the personal estate or rents, or the proceeds of realty belonging to the wards, at least to the extent of the penalty of the bonds. The condition of the guardian’s bond is broad, and, it would seem, covers all moneys or estate of his ward which comes into his hands. The paramount object of the Legislature in the enactments, to which I have referred, was to secure to the infant the realization of the proceeds of the sale, and I apprehend, if a court of equity in the exercise of its broad discretion under the laws, directs the proceeds of sale of realty, where the dividend of an infant exceeds $300.00, to be paid to the guardian without requiring the execution of a bond with security from the guardian in addition to his official bond as such, and the guardian receives such proceeds of sale, that he and his security in his official bond would be liable for the same upon such bond. But at the same time I am free to say, that the court should be careful about such matters, and that generally it is perhaps most- advisable to pursue the directions of the statutes in such cases, as near as may be. In the case at bar, however, the circuit court (according to the allegations of the bill) did require of the guardian a bond with security in the penalty of $6,000.00 before receiving the proceeds of sale from special commissioner Logie; and a bond with security was given, to which I have before referred. This bond, I apprehend, must be regarded as additional security from the guardian, as I conceive said last named bond sufficiently — 205 — broad and comprehensive in its language. It is true this bond is substantially in the form of the guardian’s first bond; but I do not think it can be avoided upon that ground under the views I have expressed, as I think it was competent for the court to require the guardian in such case to give bond as such guardian, with good security, &e. According to the allegations of the bill the parties to each of the bonds are the same. In the case of Spottswood v. Dandridge et al., 4 Munf. 289, it was held, that “where an executor dies without any personal representative, a court of equity may, at the suit of a legatee, and without any previous suit having been brought against the executor to convict him of a devastavit, convene the securities of the executor, or their representatives, and the persons who would be interested in any estate which the executor may have left, and make the securities liable for any misapplication or wasting of the assets, which shall be established in the progress of such suit in chancery. Under like circumstances a court of equity will give relief against the securities in a guardian’s bond ; and if the executor of the decedent was also guardian to the legatee, the two sets of securities and their representatives may be jointly sued.” Judge Cabell in delivering- the opinion of the court in that case at page twTo hundred and ninety-nine says: “As to the propriety of joining the two sets of securities the court is equally clear. For whenever there is a doubt as to who is to pay, justice to all concerned requires that the persons, as to whom the doubt exists, should be made parties.” Several instruments may generally be united in one bill, when the same parties are liable in respect of each, and the same parties are interested in the money or property which was or is the subject of each. If a father executed three deeds, all vesting property in the same trustees and upon similar trusts for the benefit of his children, and the parties beneficially interested under them are the same, they may all he joined in one bilk — 206 — It is not generally necessary to have in such case as many suits as there are instruments. See Story on Eq. Ph § 278 ; a and note 1. I am of opinion, that there is no necessity for separate suits upon each of said bonds in the case at bar, and that they were properly joined in one bill. I am further of opinion, that said circuit court erred in its decree in this . cause on the 28th day of April, 1876, in sustaining the demurrer of the defendant, Spohi’, to so much of the plaintiff’s bill as raised the question of the responsibility of said defendant, Spohr, under the said bond of April 19, 1869, or as seeks to make the said defendant, Spohr, liable in this cause for the proceeds of the real estate in the bill mentioned, the court should have overruled the demurrer of said Spohr altogether, and ruled him to answer in a reasonable time, and it appearing by the record that the subsequent decrees rendered in the cause are to a great extent based upon said decree of the 28th day of April, 1876, and that the error of the court committed in that decree entered into and pervades the subsequent decrees rendered in the cause to a great extent, the said subsequent decrees are also erroneous. The cases of Frazier, &c., v. Frazier’s, ex’rs, &c., 2 Leigh 642, and Roberts v. Colvin, 30 Gratt. 358, cited by appellees’ counsel, are substantially reviewed and explained by Judge Allen in delivering the opinion of the court in Gibson v. Beckham, et al., 16 Gratt. 32, to which I have before referred; and I do not deem it necessary to remark further on these cases. For the foregoing reasons the said decrees of the circuit court of Jefferson county rendered in this cause on the 28th day of April, 1876, the 15th day of November, 1876, and the 17th day of November, 1876, must be reversed and annulled with costs to the appellants against the defendants, William L. Hedges and Edward Spohr. And this court proceeding to render such decree in the cause as the said circuit court ought to have rendered, it is adjudged, ordered and decreed, that the demurrer of — 207 — the defendant, Edward Spohr, to the plaintiffs’ bill be and the same is hereby overruled; and this cause is remanded to the circuit court of the said county of Jefferson with instruction and direction to said court to rule the said defendant, Spohr, to answer the plaintiff’s bill within such time as the court may deem reasonable, and for such other and further proceedings therein as are in accordance with the principles and rules governing courts of equity. Judges Johnson and Moore Concurred. Decrees Reversed. Cause Remanded.