State ex rel. Garesche v. Slevin
| Decision Date | 28 November 1887 |
| Parties | The State to use of Garesche v. Slevin et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Amos M. Thayer Judge.
Affirmed.
Eugene C. Slevin and Alex. J. P. Garesche for appellants.
(1) It was error to permit the dismissal of the suit as to John F Slevin, the principal in the bond, for the reasons: (a) That the execution must issue first against the property of the principal in the bond, and only against the surety in the event of there not being sufficient property of the principal whereon to levy the amount. Vartie v. Underwood, 18 Barb. 551; Baylies on Guaranty and Suretyship, sec. 306; R S., 1879, secs. 587, 2612, 235, 236, 288. (b) Because it deprived the sureties of their right of judgment upon motion against the principal. R. S., sec. 3904. (c) Because the contract of a surety is merely accessory and collateral to that of his principal, and he cannot be subjected to recourse as a principal debtor. Com. v. Wenrick, 8 Watts (Pa.) 159; Com. v. Evans, 1 Watts (Pa.) 438; Hendry v. Clardy, 8 Florida, 77; Bank v. Kingsley, 2 Douglass, 403; Pothier on Obligation of Surety, sec. 365, p. 228. (2) The guardian, in lending the moneys of his ward, acted in good faith, and with the reasonable care and prudence required of a fiduciary, hence is not responsible for any loss. Schouler's Exr's and Admr's, sec. 323; Davis v. Harsman, 21 Grattan, 200; State v. Meagher, 44 Mo. 362; Fudge v. Durn, 51 Mo. 267. (3) Credit should have been given for the maintenance of the ward. 1 Chitty on Contracts [11 Ed.] 11; Miller v. Condon, 14 Gray, 116; Dawes v. Shed, 15 Mass. 10; Armstrong's Heirs v. Walkup, 9 Grattan, 375. (4) Sureties are not liable for a preexisting debt of the guardian to his ward. McCarty v. Frazer, 62 Mo. 266; Thompson v. McGregor, 81 N.Y. 598; Hyatt v. Grover, 40 Mich. 229; Spurlock v. Earles, 8 Baxter (Tenn.) 437.
J. L. Hornsby for respondent.
(1) An action on a guardian's bond may be instituted against a surety before any indebtedness has been previously established, or judgment obtained against the guardian. Devore v. Pitman, 3 Mo. 127 (side p. 179); Oldham v. Trimble, 15 Mo. 228; State ex rel. v. Roper, 82 Mo. 57; State ex rel. v. Rosswaag, 3 Mo.App. 81; Flach v. Fasen, 3 Mo.App. 561; Baylies on Sureties and Guarantors (Ed. 1884.) 304; Domestic Sewing Machine Co. v. Saylor, 86 Pa. St. 287. The removal of a guardian is equivalent to an order to pay over. State ex rel. v. Finny, 9 Mo. 227. The fact of the non-residence of a guardian, irrespective of any other consideration, warrants suit in the first instance against his sureties on his official bond. Commonwealth v. Wenrick, 8 Watts [Pa.] 169; Brandt on Suretyship and Guaranty [Ed. 1878] sec. 495; Philips v. Riley, 27 Mo. 386. The statutory remedy against a principal debtor in favor of sureties does not embrace sureties upon a guardian's bond. State ex rel. v. Darby, 11 Mo.App. 528. (2) The second point in appellants' brief suggests merely a question of fact. (3) It has been very clearly and positively decided in this state that that which was originally intended as a gratuity, cannot subsequently be turned into a charge. Folger v. Heidel, 60 Mo. 284; In re Simonds, 4 Mo.App. 598; State ex rel. v. Preetorius, 11 Mo.App. 593; McDowell v. Caldwell, 2 McCord Chan. 57; Hays v. McConnell, 42 Ind. 285; Reddle v. Reddle, 5 Richardson Eq. 35. Nor can such charge be made by the sureties of a guardian. Griffin v. Burd, 22 Gratt. 73. Such intention to give a gratuity can be established by inference as well as by promise. Crosby v. Crosby, 1 S.C. 348. (4) Even had this money of the ward not been collected by John F. Slevin as guardian, yet it is the well-settled doctrine that the sureties shall be held responsible for a preexisting debt of a guardian, to the same extent and on the same principle as for other debts due the estate -- that is, to the extent that, with due and proper diligence, the same could have been collected if it had been due from a third party, and the guardian had been required to collect the same. In re Wood, 71 Mo. 626; Eaton v. Walsh, 42 Mo. 272; Ridgway v. Kerfoot, 22 Mo.App. 665; State ex rel. v. Jones, 14 Mo.App. 595; Taylor v. Hite, 61 Mo. 142; Spurlock v. Earls, 8 Baxter (Tenn.) 442; Bond v. Lockwood, 33 Ill. 213; Schouler Dom. Rel. *470, *474; Baylies on Sureties and Guarantors, 176.
Norton, C. J. Judge Sherwood, did not sit nor participate in the decision of the case.
This suit was instituted in the circuit court of the city of St. Louis to recover damages occasioned by an alleged breach of a guardian's bond. It is averred in the petition that, in 1871, John F. Slevin was appointed by the probate court of St. Louis county guardian of the person and estate of Louis Garesche, then a minor about fifteen years old; that said Slevin made and executed his bond, with defendants, Charles Slevin and Alexander J. P. Garesche, as sureties, with the condition that if the said John F. Slevin should well, truly, and faithfully discharge the duties of his office as guardian, according to law, the bond should be void, otherwise to be in full force. As a breach of the bond, it is averred that on the first of June, 1875, said guardian loaned to John Slevin and T. E. Slevin, four thousand dollars, of the estate of his ward, Louis Garesche, took their note therefor, payable two years after date, and to secure the same took from them a mortgage on a tract of land in Williamson county, Illinois, particularly described in the petition. It is further averred that, at the same time, said guardian also lent to the same parties, on the same security, forty-five hundred dollars, belonging to the estate of Adele Garesche, who was also his ward; that he made report of these loans to the probate court, and represented these lands, taken as security for said loans, to be worth ten thousand dollars, when, in fact, the land was only worth two thousand dollars.
It is further averred that plaintiff and said Adele Garesche, in 1882, filed a bill to foreclose said mortgage; that it was foreclosed and the land was sold for forty-six hundred dollars, and that said plaintiff's share of the proceeds of said sale was two thousand dollars. It is also averred that said John and T. E. Slevin became bankrupts in 1876; that John has died, leaving no estate, and said T. E. Slevin was insolvent. It is then averred that said investment of plaintiff's money was reckless and injudicious, and that, by reason thereof, he has been damaged four thousand dollars.
The answer of defendants, Charles Slevin and Garesche, admits the appointment of John F. Slevin as guardian, and the execution of the bond sued on, as alleged; admits that said Slevin loaned four thousand dollars of his ward's money and secured the same by mortgage, as stated in the petition, but denies that the loan was made to John and Thomas E. Slevin, and avers that it was made to J. & J. Slevin & Sons, of Cincinnati. The answer denies that the investment of the ward's money was reckless or injudicious, and avers that, at the time of said loan, the said guardian truthfully and correctly represented the value of said land to the probate court, and that the security received was ample and sufficient to secure said investment, and that in making the loan the guardian acted in good faith. It is further claimed that there having been no final settlement, credit should be given the guardian for the ward's board and lodging from March, 1871, to the date of his majority, and that it was reasonably worth twenty-five dollars per month. The matters set up in the answer were denied by replication.
It appearing that defendant, John Slevin, was not served with process, the suit was dismissed as to him, and the trial was proceeded with against the securities, in which plaintiff obtained judgment, from which defendants have appealed and seek a reversal on various grounds, the first of which stripped of all redundancy, is, that a ward who has obtained his majority cannot maintain a suit against the securities on the bond of the guardian, without making such guardian a party, nor until final settlement has been made by the guardian, and his liability thereby ascertained. It is mutually conceded in the briefs of counsel that the above contention cannot be sustained, under the rulings of this court in the cases of Devore v. Pitman, 3 Mo. 179, and Oldham v. Trimble, 15 Mo. 225. In the first of these cases, it is said that an administration bond is joint and several, and may be put in suit by any person aggrieved against one or all of the obligors, and that the surety may be sued as soon as the principal commits a breach of the condition of the bond, and that no conviction, by verdict or judgment, is necessary. In the second case it is said: ...
To continue reading
Request your trial