Holden v. Curry

Pinney, J. Unless the plaintiff is concluded by the action of Richard Phelan in agreeing to accept, and in accepting, the order of Parmalee on Joseph Phelan for $996.50 in payment and satisfaction of the distributive shares of the three minors, the plaintiff and her brother and her sister, in the estate of Martin Phelan, deceased, it is plain that the defendants had no defense to the action, and the circuit court should have instructed the jury, as requested by the plaintiff, to find a verdict in favor of the plaintiff for the full amount of her claim. The uncontroverted evidence shows that when the transaction between Parmalee and Richard Phelan relied on as a defense took place, the latter was not the lawfully appointed guardian of the plaintiff or of her brother or sister, for all of whom he assumed to act. He was not their agent, because by reason of their infancy they were not competent in law to appoint an agent. There is no evidence to show that after the appointment of Richard Phelan as their guardian, January 12, 1885, they ever in any way ratified or confirmed what he had previously attempted to do in their behalf, nor that he assumed in any way to negotiate or deal with Parmalee in respect to the order. 1. A guardian of a minor derives his authority entirely from the act of the court appointing him such, and this must be evidenced by matter of record — by the record of the .court. The appointment cannot be shown in part by the record and in part by matter in pais; and of necessity the record itself is the sole and conclusive evidence of the fact, and cannot be contradicted or varied by parol evidence. It imports absolute verity, and no allegation can be admitted against it. The statute provides that, “ before appointing any person guardian of a minor, the court shall require such person to give bond to the minor, in such sum and with such sureties as the court shall designate and approve, con [511] ditioned ” as in the statute prescribed. S. & B. Ann. Stats, sec. 3966. And by sec. 4013 it is provided that “ no such bond shall be deemed sufficient unless it shall have been examined and approved by the county judge, and his approval indorsed thereon in writing and signed by him.” All the prescribed conditions of the bond are prospective, and none of them have any relation to what has occurred in the past. The bond .is therefore no protection or security to the ward for any interference or intermeddling with his property by his guardian before he was appointed such. The evidence that the count}7' judge verbally announced his satisfaction with Richard Phelan’s bond, and that he was appointed guardian of these minors, was improperly received to vary and contradict the record. It was not competent by such means to carry back the authority conferred on the guardian by an appointment which the record declares was made January 12, 1885, in pursuance of a bond filed and approved on the same day, to sanction acts and transactions of the guardian occurring in the previous November, when he was not their guardian, and for the doing of which improperly the bond actually given afforded them no security whatever. 2. The appointment of Richard Phelan as guardian, January 12, 1885, could not relate back so as to validate acts done by him in relation to the property and estate of his wards previous to such appointment, and when he had no authority over it. Huntsman v. Fish, 36 Minn. 148; Wiswell v. Wiswell, 35 Minn. 371. The fraudulent or mistaken representations, • even, of one who without authority assumes to act as guardian for an infant, afford no foundation for an equitable estoppel against the infant or his guardian subsequently appointed, so as to bind the infant or charge his property. Sherman v. Wright, 49 N. Y. 228. And if the same party is appointed guardian his rights and author512 itj as such are the same as of one appointed who had made no such representations. The case of one acting as guardian for an infant without authority is not analogous to that of an executor de son tort, or of acts done by an executor or administrator before letters are issued to him, as no one can make himself guardian for any purpose by wrongfully intermeddling with the property or affairs of an infant. The doctrine of relation is an equitable one and applies in order to support a just title, as where the proceedings necessary to vest or create it consist of several steps or acts all of them will have reference in point of time to the principal or substantial part of the transaction. It will not be applied so as to work wrong or injustice. As the transaction by which it is claimed Richard Phelan agreed to take or did take the order of Parmalee on Joseph Phelan in payment of the distributive share of the plaintifE in Martin Phelan’s estate, with which Parmalee was charged by the judgment of the county court, was without any authority and void as against her, it was a matter of no concern to her what became of the property or estate in Wisconsin of either Richard or Joseph Phelan, and the' circuit court ejred in leaving it to the jury to find whether the plaintiff’s claim should be paid by the defendants or not. Upon the plain and undisputed facts the plaintiff was entitled to recover her demand, with interest. It was immaterial that Richard Phelan agreed, if such was the fact, before he became guardian, to take, and had in fact taken, the order in question as payment. 8. The offer of the defendants to show that Parmalee never received in fact but $50 of the property and estate of Martin Phelan, deceased, was inadmissible.' The circuit court properly held that the judgment of the county court, charging Parmalee as administrator de lonis non, as already stated, was in this action conclusive as against his [513] sureties. Heard v. Lodge, 20 Pick. 58. This is the necessary result of the conditions of the bond. For the reasons stated the judgment of the eireuit court must be reversed and a new trial had. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.