McWilliams v. Norfleet

Cooper, J., delivered the opinion of the court. In 1869 Roberts was appointed guardian of.Belle F. Means (now Mrs. McWilliams) by the Probate Court of Marshall County, and gave bond, qualified, and entered upon the discharge of his duties. On the 7th day of April, 1873, the Chancery Court of Marshall County (in which the guardianship was pending) made the following order : “ This day, W. A. Roberts, guardian of Emma G., Belle F. and Eula Means, came into court and tendered a new bond as guardian as aforesaid, with R. O. Woodson, Jas. S. Potts, W. S. Puryear, John D. Fennell, J. P. Norfleet, and J. R. Dougherty sureties therein, in the penalty of twenty-two thousand dollars ; and said sureties having been justified according to law it is ordered that said bond be filed, approved and recorded, and that the sureties on the former bond be and they are released from [993] all liability thereon, except as to all acts of the guardian up to this time.” This is a proceeding by Mrs. McWilliams against the sureties on this bond and the guardian for a settlement of the accounts of the guardian touching her estate. The chancellor, by an interlocutory decree for an account, held that the bond was obligatory upon the sureties for all acts of the guardian after its execution. This is assigned for error by the sureties. He also held that as to any default of the guardian, prior to the execution of this bond, the sureties were not liable, and this is assigned for error by Mrs. McWilliams. Appeals were granted from this interlocutory decree that the principles governing the case might be settled by this court. For the sureties it is contended that the bond is not good as a statutory bond, first, because it was not required by the court, but was voluntarily tendered by the guardian; secondly, because the record does not show the existence of those circumstances which authorized the court either to compel its execution, or to accept it when tendered. It is also said that it is not good as a common-law obligation for want of a sufficient consideration. We think the bond is obligatory as a statutory bond. Sections 1211 and 1212 of the Code of 1871, under which it was executed, were as follows : 1211. “ Should the sureties of any guardian become insufficient at any time, or be in failing or dubious circumstances, and the chancellor have knowledge thereof, it shall be his duty at once to summon the guardian to appear and give a new bond with good security.” 1212. “ The sureties of any guardian, who apprehend danger of pecuniary loss by reason of such suretyship, may apply to the chancellor having jurisdiction, by petition, and on convincing the chancellor, in term time, that such danger really exists, an order shall be made requiring such guardian to give another bond, within a reasonable time, to be named by the court, in default of which, he shall be removed from office, and another [994] guardian appointed. If the new bond be given, the sureties on the former bond shall not be liable thereon, except as to all acts of the guardian up to the time of executing the new bond.” The court had- jurisdiction of the subject-matter and of the person ; it could of its own motion require the execution of a new bond whenever knowledge was communicated to it of the existence of those circumstances declai’ed by the statute to be ground for such requirement; and of their existence it was the judge. By the appearance of the guardian, it was ■made unnecessary to summon him, and by the offer of the bond by him, it was made unnecessary for the court to require its execution by a precedent order; he voluntarily did what the court might have required him to do, and what we must assume it would have compelled him to do but for his voluntary action. Neither he nor his sureties can now say that the bond is invalid because of the absence of the order, which he then waived by his conduct, volenti fit non injuria. Sayers v. Cassell, 23 Gratt. 555 ; Potter v. The State, 23 Ind. 550 ; Sebastian v. Bryan, 21 Ark. 447 ; Elam v. Barr, 14 La. An. 671. We are not to be understood as deciding that because the guardian voluntarily appeared and tendered a bond, therefore the court would have had authority to accept it in the absence of.the statute; his appearance gave jurisdiction of his person, the statute gave jurisdiction of the subject-matter. If it be admitted that the court could not order the execution of the new bond, except under the circumstances named in the statute, we think it is well settled by principle and authority that the record is sufficient to give validity to the bond. Whether the facts existed which rendered the requirement of a new bond proper was to be determined by the court, and from the fact that the bond was inquired or approved and accepted, we must presume that a proper case was shown for the action. Where the powerto determine exists and is exercised, it is to be presumed that the facts upon which [995] the court acted were sufficiently established. Cason v. Cason, 31 Miss. 587 ; Hutchins v. Brooks, Id. 430: Duncan v. McNeill, Id. 704; Cannon v. Cooper, 39 Miss. 784; Pollock v. Buie, 43 Miss. 140. By the code of 1857, p. 460, art. 145, it was provided that when the chancellor should be informed that the sureties of any guardian were insufficient at the time the bond was executed, or had become so since, the guardian should be required to give additional security. In The State, etc., v. Hull it was held that the new sureties taken under that Code were liable both for the subsequent and precedent acts of the guardian. By the same article in the Code of 1857 it was further provided that if the sureties of a guardian should petition for relief because of apprehended danger, and a new bond should be required ; in that event the new bond should “ only operate for the future, the original sureties being bound for all past breaches of the first bond.” By the Code of 1871 a change was made in the phraseology of the law. If the original bond became insufficient and the court of its own motion proceeded against the guardian, he was required to give a “ new bond.” If the sureties petitioned for relief he was to give “ another bond,” in which case it was declared that “ the sureties on the former bond shall not be liable thereon except as to all acts of the guardian up to the time of executing the new bond,” and from the Code of 1871 that clause of the Code of 1857 providing that the “ new bond shall only operate for the future ” was omitted. We think, however, that the intent and effect of the provisions of the two Codes were practically the same. In each, two classes of cases were provided for ; one where the bond already given was for any cause considered by the chancellor to be insufficient; the other where the sureties were apprehensive of danger and petitioned for relief. In the first class the “ additional security ” or “ new bond ” was required to supplement the old, the two together making one security for the ward; and in such cases both the old and new sureties or bonds stood responsible for any default occurring at any period of guardianship. In the [996] other case, each bond was the sole and separate security for a different period of time. In the case before us the extent of the liability of the sureties on the bond sued on is to be determined the question whether it was executed under sect. 1211 of the Code upon the mere motion of the chancellor, or whether it was made under sect. 1212 upon the petition of the original sureties for relief. There is nothing in the record showing upon what demand the bond was executed, except the decree or order, approving it, in which it is provided that the sureties on the former bond should be discharged from further liability save as to the past acts of the guardian. This order the court should not have made except upon a proceeding instituted by the former sureties for relief, and because under no other circumstances would it have been proper, we must presume that it was made on such petition. From this it results that the new sureties are liable only for defaults of the guardian occurring after the execution of the bond. The obligation on the bond is not such a demand against the estate of the deceased sureties as is required by law to be presented and probated. Gordon v. Gibbs, 3 Smed. & M. 473. The decree is affirmed.