HUDSON vs. HELMES' EXECUTORS, 23 Ala. 585

PHELAN, J. A guardian, by the common law, had the right to the custody and management of the personal chattels of his ward, but had no title in them. His office, in this respect, differed from that of an executor or administrator, as being an agency only not coupled with an interest; and this agency did not ordinarily extend to the power to make sale of them. But the rights both of guardians and executors to make sale of the property, whether real or personal, of wards and minors, are now wholly regulated by statute in this State.

They are not allowed to sell, except under an order of the Probate Court, and then the time and manner of that sale is specially prescribed; and as to sales by executors or administrators it is expressly declared by statute, that they shall be utterly null and void if made in any other way. — Clay’s Dig. 223-24 § § 13, 14. It is clear that the interest of his ward, James B. Hudson, could not be lawfully sold by Holmes, the guardian, at private sale, although there was an order for a sale granted by tiie Orphans’ Court. The court had no power to authorize a private sale.

So far, then, as plaintiff in error was concerned, the sale of his interest in the slave Peter, made by his guardian Helmes privately, in conjunction with Inman, stands upon the same footing as it would if there had been no order of sale. It passed no title as against the ward. — Lay’s Executor v. Lawson’s Adm’r, at this term. What then is the nature of a guardian’s liability, who, without lawful authority, makes sale of his ward’s chattels ?

His act is nothing different from that of any other bailee, who, having the rightful custody or possession of the goods or chattels of another for one purpose, converts them to another purpose, or sells or destroys them. The act is in law a conversion, and his liability a liability to pay damages commensurate with the nature and extent of that conversion. If a guardian were removed for such

an act, as ordinarily he would be, and the ward should sue him on his bond or in any action of trover and conversion, the measure of damages which he would be entitled to recover, in either case, would be the value of the property converted, with interest from the time of the conversion. This would not be the whole extent of the infant’s rights, it is true.

If the property remained in specie, he might roceover it immediately from the holder by suit in detinue through aprochein ami, or he might do this by suit in his own name simply after coming of age, even after a lapse of years; or he might sue tho holder in detinue, and tho guardian in trover, and take in satisfaction whichever judgment he liked best. But in this case the ward prefers to let his guardian remain in office for years after this act of conversion, and then calls him to a settlement. What, under such circumstances, is the rule which will do justice between tho parties ?

It is, as we conceive, to treat the sale of the slave as a conversion, and charge the guardian with his value, as the court in its discretion may think proper, either at the time of the conversion, or of the settlement, or any time between, and interest on that value from the conversion.

To make the guardian pay his value at the time of the settlement, and pay hire for him up to that settlement, with yearly interest on hire, as plaintiff in error claims to do, would be to make the guardian the insurer of the life of the ward’s slave until the ward chooses to call him to a settlement, and then at the option of the ward to be made his purchaser.— There would be no safety for guardians, and ordinarily no justice, in such a rule; for many times it might happen that sales, which were not formal and legal, would be made in good faith, and prove greatly advantageous to the ward.

Indeed there is nothing in tho facts of this case, when fuliy considered, that would lead to the belief that the guardian did not act in perfect good faith so far as the ward was concerned. It appears that there was an adult equally interested with the minor, who partly conducted the sale of the slave Peter. As tho Prohato Court made the guardian pay $700 for Peter, when he only sold for about $500, it seems to us that full justice was done to the minor uuder all the circumstances of the case. The rule adopted by the court below has been already sanctioned by one decision of this court.—Alexander v.

Alexander, 8 Ala. 796. The judgment below is affirmed. The motion of defendant in error to dismiss the writ of error, we did not deem it important to decide, as the case was found to be with him on the errors assigned.