Opinion
June Term, 1825.
An action of ejectment was brought against the ancestor, pending which he died, and his infant heirs were made parties by scire facias to their guardian, who, in their names, came forward and defended the suit for the infants, and for their benefit took possession of and received the rents and profits of the land during the pendency of the suit; after a recovery by plaintiff in the ejectment he brought an action for mesne profits against the infants, who had never had any possession except that of their guardian before mentioned; Held, that plaintiff might sustain the action against them.
TRESPASS for mesne profits, tried below before Badger, J., at JONES. At the trial a verdict was taken for the plaintiff, subject to the opinion of the court upon the following case reserved.
Gaston for appellant.
Note. — The HON. GEORGE E. BADGER at the close of the spring circuit resigned his seat on the bench of the Superior Courts and resumed practice at the bar. This explains the reason of his having tried the cause below and having afterwards argued it in the Supreme Court.
An action for ejectment was brought in the name of John Doe, as lessee of the present plaintiff, against Richard Roe, and the declaration was served on Mary Mumford (mother of the defendants J. and P. Mumford) as tenant in possession; at the return term, September, 1819, Mary Mumford appeared, entered into the common rule, was made a defendant, and pleaded "Not guilty"; in December following she died. At March Term, 1820, her death was suggested, and a scire facias ordered to make her heirs parties; at September term following the defendants in this action were made defendants in the ejectment by the following entry on the record, viz.: "James Mumford and Penelope Mumford, by James Harrison, their guardian, acknowledge service of scire facias, and become defendants to this cause." At the succeeding term the action of ejectment was tried, and plaintiff had a verdict and judgment, and a hab. fac. poss. issuing thereon, the lessor of the plaintiff was put into possession.
After the death of Mary Mumford, and pending the ejectment, James Harrison, the guardian of J. and P. Mumford, took possession of the premises as their guardian, and as such received profits to the amount of damages assessed by the jury. The defendants James (484) and Penelope were infants of very tender years, and did not possess or occupy the land, or receive any of its profits, unless the occupation and receipt of profits by Harrison as above stated be their occupation and receipt in law to charge them in this action.
Upon these facts it was contended for the defendants:
1. That the defendants James and Penelope were never properly made defendants to the ejectment, and that consequently the proceedings in that action were no evidence against them of plaintiff's title.
2. That the plaintiffs cannot recover against the defendants the profits received by their guardian as above stated, as they did not personally intermeddle with the land or receive the profits; that as this was an action for a tort the infants could not be made liable to it by the acts of another, and the trespasser should himself have been sued.
The court below was of opinion with the defendants on the second ground taken, and pursuant to an agreement stated in the case set aside the verdict and directed a nonsuit, whereupon the plaintiff appealed.
It is the duty of a guardian to possess himself of all the (488) lands of which his word is apparently seized; to receive the rents and profits, for which he is to account to his ward at full age; and generally to pursue all those means pointed out in the act of 1762 towards the execution of his trust. If a suit be brought against the guardian for the lands of which the ancestor of the ward died seized, it is incumbent on the guardian to make a defense; for if the land is lost by his negligence, it would be a breach of duty in him for which he would be responsible to his ward. Should his defense be unsuccessful, and damages awarded against the ward, it would be repugnant to every principle of justice that the guardian should be made (489) personally liable; for who under such a state of things would become either a general guardian or guardian ad litem? When the law imposes a duty or obligation on a man, it will protect him in the discharge of it so long as he acts within the bounds of his duty. The guardian was compelled by law to defend the ejectment; he was compelled by law to enter upon the lands after the death of Mary Mumford and receive the profits, not for his own use, but for the eventual benefit of his wards, if they had succeeded in the suit. Not one tortious act has been committed by the guardian, for it would be a contradiction in terms to call that so which was done in indispensable obedience to the act of 1799, that if the heirs are minors after the death of their ancestor against whom an ejectment had been instituted, the guardian must defend the suit. The tort supposed in the action of ejectment is the original trespass or dispossession; that was committed by the ancestor in his lifetime, and the interference of the guardian was a rightful act because exacted from him by law, and because, to all human appearance, it might result in benefit to the heirs. The simple statement satisfies me that the guardian is not liable, and goes very far to prove that the heirs are liable; as the laws provides that the only way in which a suit against an infant can be defended is by guardian; a recovery in such suit is a recovery against the infant, and must be binding upon him; for if a suit had been brought by a guardian or next friend, the recovery would have inured to the benefit of the infant. By intendment of law the suit and recovery are against the infant, as appears by the form of pleading: "And the said C. D., and G. H., admitted by the said court here as guardian of the said C. D. to defend for the said C. D., who is an infant under the age of 21 years, comes and defends the wrong and injury, when, etc." 2 Chitty, 409. The infants then did really receive the rents and profits by the hands of their (490) guardian, who would have been accountable to them had a contrary judgment been rendered. The guardian is the main instrument through which the infant's interests are managed; he must be bound by the guardian's acts generally, but emphatically by those acts which are done in obedience to the law. It would be singular that a judgment recovered against an infant by his guardian in lite should not bind him when the guardian may, of his own accord, do so many acts that will; he may submit the infant's rights to arbitration, and the infant would be bound by the award. Roberts v. Naibold, Comb., 318. Upon the whole I am quite satisfied that there ought to be a new trial and the nonsuit set aside.
The rest of the Court concurring, the nonsuit was set aside, and the judgment
PER CURIAM. Reversed.