Peter D. Smith v. A. W. Dibrell, 31 Tex. 239

Lindsay, J. —Under orders of the probate court of Guadalupe county, the administrator upon the estate of Charles A. Smith, deceased, sold a tract of land belonging to the estate, which was purchased by John I. St. Clair, who executed his note to the administrator for the purchase-money, with A. hT. Erskine and A. W. Dibrell as his securities, taking also a mortgage upon the land sold, as prescribed by the statute. Before payment of the note the administration was closed, and this note, in the distribution of the •estate, came to the hands of P. D. Smith, the appellant, as guardian of the minor heirs of Charles A.

Smith, deceased. This note was the property of the minor heirs, a part of the proceeds of their inheritance, which was known, to and well understood by the appellee, A. W. Dibrell, one of the sureties upon it. It is made the duty of guardians by the statute to collect the claims or debts due to their wards, and to recover property to which they have claim or title, and to account to them for all rents, profits, and revenues which are or may become due to their estates.

If moneys are collected by them which are not applied to the support,, maintenance, and education of their wards, the law requires-them to put such money at interest upon mortgages on real estate, under the approval of the chief justice, or retain it in .their own hands, with a like approval of the chief justice and the assent of their sureties.

This note was already at interest upon mortgage on real estate, and, if approved by the chief justice, the guardian was under no. obligation to proceed to collect it till it was the pleasure of the obligors to pay it; when, according to his statutory obligation of duty, he was required to place it again in a similar condition. Without the approval of the chief justice he had no legal right to release the mortgage to the vendee at the sale by the administrator, and thus attempt to confer upon him a right to convey the fee to Dibrell, the appellee, one of the sureties of that vendee at the administrator’s sale.

This arrangement of the guardian, in which he took the individual notes of the two sureties in lieu of the original note and released the mortgage executed by the vendee, finds no warrant either in law or in equity. It accomplished, in legal contemplation, just nothing at all, and leaves the whole matter in statu quo; and no equities are created in favor of the sureties, except so far as they may have actually paid over any portion of the original purchase-money to the proper person for the use and benefit of those minor heirs. This is the legal aspect of the case.

In equity the dealing of guardians with the estates of their wards is watched over with a vigilant jealousy by the chancellor. And while- the chancellor will often uphold and ratify contracts and arrangements made by the guardian which are for the interest of his ward, although there may be no authority or express sanction of law for the special course he may have pursued, yet, if such contract or arrangement be detrimental to the estate of the ward, it is the province and the duty of courts of equity to vacate and set it aside.

It is upon a similar principle of natural justice that the infant or minor, when he attains his majority, is permitted to make his election to adopt and confirm the contracts of his guardian without aijthority of law in and about his estate, when they are to his advantage, and to repudiate them if he deem them injurious. If the guardian sell the land of his ward without being authorized by law, the ward has his election to accept the price or reclaim the land when he comes of age, no matter who has become the purchaser.

This being our view of both the law and the equity of the case, the infants, or minors, whose property is involved, occupy the position in court of wards of' chancery, and it is the duty of the court to protect their interest in this litigation, by using its discretion, as the minors would have a right to use theirs at majority, in adopting or repudiating the act of the guardian in his formal release of the mortgage. Such release was obviously prejudicial to the interest of the minors, and ought to be repudiated. The guardian had no legal right to make it. The case is therefore reversed.

But as, from the view we take of the case, there is no vendor’s lien, but the right rests in equity upon the mortgage, which is not made a part of the record, though admitted to exist in the pleadings, it is remanded, with instructions to the court below to grant leave to the plaintiff to amend his petition, by introducing the mortgage and seeking its foreclosure and the subjection of the land to the payment of the residue of the purchase-money due upon the mortgage executed at the administrator’s sale. Reversed and remanded;