John C. Yerger, Appellant, v. William H. Jones, and Robert S. Brandon, Executors of William Brandon, deceased, 16 How. 30

Mr. Justice GR.IER, delivered the opinion of the court. The appellant, John C. Yerger, a minor, suing by his next friend, filed his bill against William Brandon, setting forth that the father of complainant died in the State of Tennessee, leaving him his only child and heir at law; that his father made a nuncupative will, by which James W. Camp was appointed guardian of complainant; that Camp, acting as such, took possession of his property, and removed to the State of Alabama, where he died in 1845, insolvent.

That at the time of his death Camp was largely indebted to his ward for the use and hire of his slaves, and stated an account admitting the sum of about six thousand dollars to be due. That Camp contracted with -Brandon to purchase a tract of land, for the use of his ward, for the price or sum of $8,000. That Camp paid to Brandon about • five or six thousand dollars, on account of such’ purchase, by a sale of certain property under a deed of trust.

That Camp had no right, as guardian, to convert the personal property of his ward into real estate; that the price agreed to be paid for the land was exorbitant, and a large balance is still due on said contract, which the complainant is unwilling to pay- in order to obtain the title. He therefore prays the court to rescind and annul the contract, to take an account of the payment made by Camp and Brandon, and decree that the amount be restored to the complainant.

The answer denies that Camp was the legal guardian of complainant — but admits that he lived in the family of Camp after he came to Alabama, and apparently under his control. That the purchase made by Camp was for a fair price, and the property transferred by him, in part payment, was the property of Camp and not of complainant; and that the contract was made without any view to injure or defraud the complainant, and did not have that effect; and that respondent is ready and willing to convey the tract of land to complainant, on receipt of the balance of the purchase-money.

The evidence in the case does not show that Camp was appointed guardian of the complainant by his father’s will or by any competent legal authority, either in Tennessee or Alabama. But it appears that when Camp came to Alabama, that the complainant lived in his family, and that Camp acted as his guardian, having control of his person and of his property, which consisted of negroes. Camp had a farm of 960 acres in Alabama, and employed the negroes of complainant to work for him, and was largely indebted to him on account thereof.

He was indebted also to Brandon, and. his farm was.subject to a deed of trust or mortgage. To satisfy this mortgage the land was sold and bid in by Brandon for the sum of $4,500.' ■ Some negroes belonging to Camp were also included in the mortgage, and wfere bid in for the sum of over $2,000, for the use of Yerger, (the complainant,) and paid for by Camp.

An agreement was also made between Camp and Brandon; that Brandon should convey the farm purchased by him to the complainant, on receiving the sum of eight thousand dollars, being the amount of the purchase-money advanced by Brandon and of the debt due by Camp to him. To secure the payment of this sum Camp gave Brandon a bill of sale, or trust deed, for a large amount of - personal property, consisting of 350 acres of cotton, 450 acres of corn, 300 hogs, besides horses, mules, farming utensils, &c.

Brandon was to sell this property, and apply it in payment of this contract for' the land, after deducting reasonable compensation for his trouble and expenses. The defendant, in his answer, admits the amount of sales under this trust to be $5,235.24; deducting charges and. expenses, $1,868.48, leaves a balance applicable to the purchase-money of the farm, of- $3,365.75. The bill does not allege that there was any fraud or collusion between the párties to this transaction, or any intention to injure the complainant. Nor would the evidence in the case support any such allegation.

Brandon was endeavoring to secure his own debt in a manner least oppressive to Camp, by an arrangement which would leave him in possession of the farm on which he resided. Camp was endeavoring to save something for his ward, to whom he was indebted, out of the wreck of his estate. By this transaction the remains of his personal estate was vest-e‘d in a valuable property, for the use of his ward, and put out of the reach of other creditors, with the incidental advantage to himself of retaining a home to himself and family.

He was not converting' the property of his ward to his own use, or to pay his own debts by collusion with Brandon, but-was applying his own personal property in the best manner he could, to secure, his w;ard from loss. His death has prevented his good intentions from being fulfilled to the extent contemplated. . It is not easy to perceive on what principie of equity or justice the complainant can invoke the aid of a court of chancery to rescind and annul this contract, and compel the defendant to refund the amount paid by Camp on it.

It is true a guardian has no power to convert the personal property of his ward into tealty. Nor is the ward bound to fulfil or perform the' contract made with Brandon. He has a right to hold his guardian accountable for’ the balance due him, and repudiate the contract made for his use. Or he may elect to take the land bargained for", but cannot demand a title from Brandon without payment of the balance due on the contract. In Alabama, and some others of the States, a guardian cannot sell even the personal property of his ward without the leave of the court.

By the common law, and in those States where is has not been modified by statute, he is considered as having the legal power to sell or dispose of the personal property of his ward, and a purchaser who deals fairly has a right to presume that he acts for the benefit of his ward, and is not bound to inquire into the state of the trust, nor is he responsible for the faithful application of the money unless he knew, or had sufficient information at the time, that the guardian contemplated a breach of trust, and intended to misapply the money, or was in fact, by the transaction, applying it to his own- private purpose.

The cases on this subject are reviewed by Cancellor Kent in Field v. Schieffelin, 7 Johns. Chan. 150. In order to follow trust funds which have been transferred to third persons, there must be a breach of trust in their transfer, and á collusion by the purchaser or assignee with the guardian, executor, or trustee. If Brandon had taken the -negroes belonging to plaintiff from his guardian, in payment of his debt, knowing the guardian was insolvent, and abusing his trust, a court of equity would compel him to return them to the ward, or pay their full value.

But, in the case before us, Camp was dealing with his own property, and there is no pretence of any collusion with him by Brandon in the abuse of his trust. He has received nothing which belonged to the ward, or which he is under any obligation to restore to him. So far as the interest of the complainant were affected by this transaction, the object of it was to benefit, not to injure him.

He may therefore assume the Contract, and demand a specific execution .of it from the defendant, but has shown, no right to rescind it and recover the money advanced in execution of it; The decree of the court below is therefore affirmed. Order. This cause came on. to be heard on the transcript of the record, from the Circuit Court of the United States for the Northern District of Alabama, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed, by this court, that the' decree of the said District Court, in this cause, be, and the same is hereby affirmed, with costs.