Tomlinson v. Simpson
| Decision Date | 09 June 1885 |
| Citation | 23 N.W. 864,33 Minn. 443 |
| Parties | Edwin M. Tomlinson v. Thomas Simpson and another |
| Court | Minnesota Supreme Court |
Separate appeals by the defendants from orders by Start, J refusing a new trial, after a trial by the court, a jury having been waived.
No new trial is necessary.
William Gale, for appellant, Willson.
Vance & Tawney, for respondent.
Mitchell, J. Plaintiff,
a minor, owned S. 1/2 of S. E. 1/4 of section 11, and N. 1/2 of N. E. 1/4 section 14, town 102 N., of range 13. Defendant Simpson, his guardian, petitioned the probate court for license to sell the S. 1/2 of S. E. 1/4 and N. 1/2 of N. E 1/4 of section 11, town 102, range 13. The court granted him license to sell the S. 1/2 of S. E. 1/4 and N. 1/2 of N. E. 1/4 of section 11. Thereupon Simpson, as principal, and defendant Willson, as surety, executed to the judge of probate a bond, the condition of which was "that whereas, the above bounden Thomas Simpson, in his capacity of guardian of Edwin M. Tomlinson, has been licensed by an order of the said probate court * * * to sell the real estate of said minor, to wit, the S. 1/2 of S. E. 1/4 and the N. 1/2 of N. E. 1/4 of section 11, township 102 N., of range 13 W.: Now, therefore, if the said Thomas Simpson do and shall justly and faithfully sell the said real estate in the manner prescribed by law, and shall justly and truly account for and dispose of all the proceeds of said real estate, in the manner provided by law, and according to law, and shall perform all orders and decrees of said court by him to be performed in the premises, then this obligation shall be void, otherwise it shall be and remain in full force and virtue."
It will be observed that the land described in the petition, license, and bond consists of one 80 owned by the ward and another which he did not own. Subsequently Simpson proceeded and sold the two eighties in fact owned by his ward, viz., one in section 11 and another in section 14. He sold both as an entirety for the gross sum of $ 2,400. This money he mingled with his own and never invested it for his ward. This sale was confirmed by the court and a deed made to the purchaser. Between the date of the sale and the time when the plaintiff attained his majority, Simpson paid out and expended for his use, from time to time, divers sums, amounting in the aggregate to about $ 1,460, and rendered services as guardian of the value of $ 300. Simpson having failed to render an account as was required by the court, and having failed to settle with or pay over to the ward on his becoming of age, plaintiff, on leave of the court, sues on the bond to recover the entire sum of $ 2,400, less the amounts disbursed for his benefit. In the complaint he alleges a sale by Simpson, as his guardian, under license from the probate court, of his whole 160 acres for the sum of $ 2,400. There is no allegation or proof of any fraud or of mistake in the terms of the bond. Simpson does not dispute his liability to account for the whole of the $ 2,400.
The court, upon an accounting, charged Simpson with the full sum of $ 2,400, and credited him with the amount disbursed for his ward, and with his services as guardian, and found the balance due plaintiff, including interest, to be $ 1,390.66, with interest from April 22, 1883, less $ 10 subsequently paid. The court also found (upon evidence we think sufficient) that the 80 acres in section 11 was worth $ 300 more than the 80 in section 14. The court, while intimating an opinion that Willson was liable on his bond for the entire $ 2,400, assumed, for the purposes of his decision, that he would be only liable for the proceeds of the 80 acres described in the license and bond, and that the $ 2,400 should be apportioned between the two eighties. But, while assuming this, yet the court held that, as between Willson and plaintiff, the latter had the superior equity, and was entitled to have the amount of Simpson's disbursements and services first applied to the payment or extinguishment of that part of the $ 2,400 arising from the sale of the 80 acres not described in the license and bond. This was held, as we understand it, upon the principle that, no application having been made by the parties, the law would make the application most beneficial to the creditor; that is, to that part of the claim for which he had no security. Upon this view of the law the court ordered judgment against both defendants for the full amount due plaintiff.
As Simpson does not here urge his appeal, the order appealed from must, as to him, be affirmed. The main questions arise on the appeal of Willson, the surety. These questions are three: (1) Was the surety liable for the entire $ 2,400 received by Simpson on the sale of both eighties? (2) If not, could the amount be apportioned between the two eighties in proportion to their values at the time, and Willson held liable for the proceeds of the 80 described in the license and bond? (3) And if so, how should Simpson's credits be appropriated?
It seems to us that the first of these questions must be answered in the negative. It is a settled rule of law that a surety is not to be held beyond the terms of his contract. The claim against him is strictissimi juris. Nothing can be clearer, both upon principle and authority, than that the liability of a surety is not to be extended by implication beyond the precise terms of his bond. To the extent and in the manner pointed out in his obligation he is bound, and no further. He has a right to stand on the very terms of his contract. In this case the conditions of the bond were that Simpson would sell according to law and account for the proceeds of land in section 11, specifically described in both the license and bond. Having contracted merely to be responsible for his principal's acts in selling one tract of land which the latter had been licensed to sell, we are unable to see on what principle he can be held responsible for the proceeds of an entirely different tract. It is no answer to say that it was not necessary that either the license or the bond should specifically describe the land to be sold. They do describe it, and the land thus described is the only land which Simpson was authorized to sell, and the only land for the sale of which Willson, by the terms of his bond, contracted to become liable. Neither will it do to say that it was the 80 in section 14 that was intended, instead of the second 80 in section 11. We may very naturally surmise that Simpson made a mistake of description in his petition, and that this description was afterwards followed in the license and bond. But there is neither allegation nor proof of this. No mistake in the bond is either alleged or proved, nor is any reformation of it asked for. ...
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