Madison Cnty. v. Johnston

• Decision Date: 26 April 1879
• Parties: MADISON COUNTY v. JOHNSTON ET AL.
• Court: Iowa Supreme Court

51 Iowa 152

50 N.W. 492

MADISON COUNTY

v.JOHNSTON ET AL.¹

Supreme Court of Iowa.

April 26, 1879.

Appeal from circuit court, Madison county.

Action at law upon a guardian's bond. A judgment upon default was entered against the principal, the guardian. Upon an amended petition, charging that the surety had transferred his property without consideration, and praying that it be held subject to the payment of plaintiff's claim, the cause was transferred to the chancery docket. A trial upon the merits was had, and the petition as to the surety was dismissed.McCaughan & Dabney, for appellant.

Gilpin & Gilpin, for appellee.

BECK, C. J.

1. The money in the hands of the guardian, for which the surety is sought to be charged in this action, is the proceeds of real estate sold by the guardian upon proper proceedings and orders, as prescribed by the statute, had in the proper court. After the order for the sale, and before the lands were disposed of thereunder, the guardian executed, with a surety, a special bond, as prescribed by statute, that he should faithfully apply and account for the money realized from the sale of the property. The bond in suit was executed upon the appointment of the guardian. The sole question in the case which we find it necessary to determine is this: Is the surety upon the first bond executed by the guardian liable for the money received by the guardian upon the sale of the ward's lands? We must first direct our attention to the statute applicable to this case. The bond in suit was executed in 1863. The Revision of 1860 must therefore be consulted. Section 2548 is as follows: “Guardians appointed to take charge of the property of a minor must give bond, with surety to be approved by the court, in a penalty double the value of the personal estate, and of the rents and profits of the real estate of the minor, conditioned upon the faithful discharge of their duties as such guardians according to law. They must also take an oath of the same tenor as the condition of the bond.” It is provided that lands of a minor might be sold by the guardian upon an order of the proper court, made in proceedings instituted for the purpose of bestowing authority therefor upon him. Sections 2552-2555. Section 2556 provides as follows: “Before any such sale or mortgage can be executed, the guardian must give security to the satisfaction of the court, the penalty of which shall be at least double the value of the property to be sold or the money raised by the mortgage, conditioned that he will faithfully perform his duty in that respect, and account for and apply all moneys received by him under the direction of the court.” It will be observed that the bond given upon the qualification of the guardian is conditioned for the faithful discharge of his duty according to law, and the penalty is the value of the personal estate and the rents and profits of the real estate of the minor. It is reasonable to suppose that the bond holds the surety responsible for the failure of the guardian to perform duties contemplated when the instrument was executed. The failure to discharge duties not contemplated by the law and by the parties cannot be the ground of recovery against the surety. This proposition, we think, cannot be doubted. It is plain to our minds that the proper disposition of the moneys to be afterwards received by the guardian upon the sale of real estate of the ward was not a duty contemplated by the statute requiring the execution of the bond, and could not, therefore, have been in the contemplation of the parties when the bond was executed. We base this conclusion upon the...