Cook and wife vs. Lee, 6 Paige Ch. 158

The Chancellor. Several questions were raised upon the argument, as to the regularity of the proceedings in the partition suit, but as those questions relate to the validity of the title of the purchaser, who was the plaintiff in the partition suit, rather than to the liability of the guardian ad litem, it is not material, and it would perhaps be improper, that I should express any opinion upon them here.

If the proceedings in the partition suit have been so defective that the legal title did not pass to the purchaser under the deed of the commissioners, the remedy of the complainants is against other persons for the recovery of the land itself. And if the commissioners have paid over the proceeds of the sale to the wrong person, the guardian ad litem is not answerable for their acts.

They alone are liable to the complainants, unless the guardian has done some act by which he may be considered as having assented to the misapplication of the fund ; in which case he may be personally responsible to the complainants if they cannot collect it from those who are primarily liable therefor. The only two questions to be considered, therefore, are, whether the commissioners were authorized to pay the money to the general guardian ; and if not, whether this defendant has assented to the payment of the money to the wrong person.

The question as to the right of the general guardian to receive the proceeds of the sale in the partition suit was deliberately examined and settled in this court by Chancellor Sanford, in the case of Muir v. Wilson and others, (Hopk. Rep. 512.) The proceedings in the partition suit in that case were under the act of 1801, (1 R. L. of 1801, p. 545, § 5, 6,) which, in this respect, was substantially the same as the act of 1813.

The general guardian of the infants was appointed guardian ad litem in the partition suit, and the proceeds of the infant’s share of the property was paid over to the guardian under the order of the court. The guardian having squandered the money, the question arose whether he could be considered as having received the money as general guardian, so as to make his sureties upon his appointment as such answerable for the proceeds of the real estate.

And this court decided that he was not authorized to receive the proceeds of the sale in the partition suit, in his character of general guardian; and that his sureties upon the appointment as guardian ad litem were alone answerable for the proceeds of the infant’s real estate, the guardian being insolvent. I have no doubt that this is the correct construction of the statute, and that the commissioners in the present case paid over the infant’s share of the money to her general guardian without authority.

I have not been able to find any evidence in this case that the money was paid over to the general guardian by the direction or with the assent of the defendant. He was probably under the same erroneous impression as the commissioners, as to the right of the general guardian to receive the money; and supposing his duty as guardian ad litem had terminated when the property had been sold for its fair value, he left the commissioners to dispose of the fund as they were advised.

Even if the guardian ad litem would be answerable for a loss of the money, by his neglect to call upon the commissioners for the payment thereof to himself after they had paid it to the wrong person, he cannot be made liable in the present suit; as there is no evidence that the commissioners are insolvent so that it cannot be collected from them. Neither do I find any allegation to that effect in the complainants’ bill. The decree of the vice chancellor was therefore right, and must be affirmed, with costsi