Reed v. Hedges et al

• Decision Date: 17 April 1880
• Citation: 16 W.Va. 167
• Court: West Virginia Supreme Court
• Parties: Reed and Roper v. Hedges et al.

16 W.Va. 167

Reed and Roper

v.Hedges et al.

Supreme Court of Appeals of West Virginia.

Decided April 17, 1880.

1. A guardian's bond is not invalid becenise the condition does not state the appointment of the guardian.

2. A guardian's bond contains a covenant or condition to save harmless the recorder by whom the guardian was appointed and who took the bond. Although this is not required by the statute, it does not avoid the bond.

3. 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 obligors to the extent of the condition.

4. Where a court or officer has capacity to take a bond, and makes a mistake by omitting some condition prescribed, or inserting some 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 a statutory bond.

5. 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 of statutes. In each case the bonds are void as to the conditions, covenants cr grants that are illegal, and are good as to all others which are legal and unexceptionable in their purport. The only exception is, where the statute has avoided the whole instrument to all intents and purposes by express words or necessary implication..

* Counsel in the court below.

Under a fair construction of the last clause of section 3 of chapter 79 and section 13 of chapter 82 and of section 7 of chapter 83 of the Code of 1808, it is competent, and in many cases eminently proper, for the circuit court to direct the proceeds of realty in a case of partition brought under the said 79th chapter to be placed by the court in the hands of the guardian, as such, of the infant or infants to whom the same belong; and the circuit court in taking bond with security under the last named sections may take the bond from the guardian as such: but perhaps this is not indispensible.

7. The sureties of guardians should be held to have contemplated at the time of executing the bonds a possible liability and recovery, at least to the extent of the penalty of their bonds, whether it be for the personal estate or rents or the proceeds of realty belonging to the wards.

8. The conditions of the guardian's bond are broad, and, it seems, cover ll moneys or estates of his ward which come into his hands.

9 The paramount object of the Legislature in enacting section 3 of chapter 79 and section 13 of chapter 82 and section 7 of chapter 83 of the Code of 18G8, was to secure to the infant the realization of the proceeds of the sale of his realty; and if a court of equity in the exercise of its broad discretion under the laws directs the proceeds of the sale of realty, when the dividend of an infant exceeds $300.00, to be paid to the guardian without requiring the execution of bond with security from the guardian in addition to his official bond, as such, and the guardian receives such proceeds of sale, he and his security in his official bond would be liable for the same on such bond.

10. The bond taken in the circuit court is substantially in the form of the guardian's first bond given before the recotder; but this does not avoid the bond taken in the circuit court. The bond taken by the circuit court will be treated as additional security from the guardian, as it was competent for the court to require the guardian in such case to give bond with security as such guardian.

11. 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.

12. H. is appointed guardian of two infants by the recorder of Jefferson county, and as such guardian, gives before such recorder one bond with security for both infants. Afterwards real estate in a suit for partition of real estate, in which the said infants have each an interest, (in which suit the said H. and his wards were parties) is decreed to be sold by a special commissioner appointed for the purpose by the circuit couut of Jefferson county; and the real es- tate is sold aud the sale confirmed by the said court, and the dividend of each infant ward exceeds $300.00, and the courl afterward directs such special commissioner to pay the proceeds of such sale to H., the guardian, upon his executing bond with security in the penalty of $6,000.00; and afterwards H. executes a bond in such penalty with condition substantially the same as that of his official bond with the same surety as in his official bond; said last bond should be regarded as additional security from the guardian; and in a suit by the wards to recover the amount due them both bonds may be joined in the same bill.

Appeal from three decrees of the circuit court of the county of Jefferson rendered, the first on the 28th day of April, 1875, the second on the 15th day of November, 1876, and the third on the 17th day of November, 1876, in a cause in chancery in said court then pending, wherein Lucy G. Reed and Mary C. Roper were plaintiffs and William L. Hedges and Edward Spaw or Spohr were defendants, granted upon the petition of said plaintiffs.

Hon. J. B. Hoge, judge of the third judicial circuit, rendered the decrees appealed from.

Haymond, Judge, furnishes the following statement of the case:

The bill in this cause was filed at rules in he clerk's office of the circuit court of Jefferson county on the 8th day of September, 1874, in which the plaintiffs allege, "that their grandfather by his will gave your oratrixes certain interest in real and personal estate; that your oratrix, Lucy G. Reed, was born January 14, 1850, and was married to John W. Reecl November 6, 1872; and your oratrix, Mary C. Roper, was born the 25th day of November, 1853, and married William A. Roper on the 12th day of December, 1871; that on the 14th day of November, 1866, their mother being dead, William L. Hedges, their father, qualified before the recorder of Jefferson county, West Virginia, where your oratrixes then lived, as the guardian of your oratrixes, and entered into a bond required by law, dated that day, with one Ed- ward Spaw as his security, one bond being executed as guardian of both of your oratrixes in the penalty of six thousand dollars, and conditioned as required by law in guardianship bonds. An attested copy of said bond and order of qualification is herewith filed as an exhibit and prayed to be taken as a part of this bill. That the said William L. Hedges, after so qualifying, though he received, as hereinafter shown, large amounts of money belonging to each of your oratrixes while they were infants and before their marriage, never did, as required by law, settle any account as such guardian. In the absence of any such settlement, your oratrixes are unable to state all the money so received by the said William L. Hedges, their guardian, but your oratrixes, by having the records of this court searched, have recently discovered that in the year 1866, and shortly after he qualified as guardian, the said William L. Hedges, as guardian of your oratrix, Mary C. Roper, then Mary C. Hedges, obtained an order of this court in the cause of William G. Butler, &c, against William L. Hedges, &c, entered December 22, 1866, whereby the sale by James Logie as special commissioner, of their grandfather's land to Henry C. Ritner for $13,400.00, with interest from the day of sale, August 7, 1866, was confirmed, and said James Logie, special commissioner, directed to collect the purchase-money and loan out the portions coming to your oratrixes that is to say, one fifth of the whole, or $2,680.00, the interest to be paid semi-annually to the said Logie and to be paid by him semi-annually to the said William L. Hedges, the guardian of your oratrixes, so far as was necessary for the support and maintenance of your oratrixes. What amount of money was paid by the said James Logie under this order to the said William L. Hedges, their guardian, your oratrixes have been unable to ascertain said W. L. Hedges never having settled any account. Subsequently, on the 14th day of April, 1869, the said William L. Hedges obtained an order in said cause tbat said James Logie, special com mis- sioner, should collect the fund loaned out under said pre-

vious order and pay the same over to William L. Hedges, guardian as aforesaid, upon his executing before the clerk of said court a bond, with good security, in the penalty of $6,000.00 conditioned according to law; and on the day of April, 1869, the said William L. Hedges did execute such bond before the clerk of this court, with said Edward Spohr as his security, a certified copy of which bond is filed herewith marked plaintiff's exhibit No. 2, and prayed to be taken as a part of this bill. And subsequently in said cause the said William L. Hedges, on the 22d day of April, 1869, obtained another order of this court at same term modifying the order of April 14, 1869, by ordering the said James Logie, special commissioner, to deliver to William L. Hedges, the guardian of your oratrixes, the bonds of the parties, who under the order aforesaid had borrowed the said money, which belonged to your oratrixes as their portion of the proceeds of the said sale of real estate of their grandfather. And shortly thereafter, and after the execution of said last named bond, as your oratrixes are informed, the said bonds were so delivered over and also some money paid over by the said James Logie. To a more perfect understanding of which orders your oratrixes file herewith as a part of this bill an attested copy of the proceedings and of all...