
    Charles Payne vs. William A. Stone, Guardian of Charles F. and Helen M. Merrick.
    If a person deal with a party, having by law but a limited authority, he can have no right beyond what the authority rightfully exercised would confer. The probate court of Adams county granted to S., guardian, &c., permission “to erect out of the funds of his wards, a building upon their lot in Natchez, of such dimensions and quality as may suit their interest: ” Held, that the court did not thereby intend to authorize the guardian to erect a building upon credit, and thereby destroy the interest of his wards.
    The probate, court has no power to authorize the erection of buildings upon the real estate of minors, which may involve the necessity of selling that estate to pay for them.
    The probate court of Adams county, upon the petition of S. as guardian of his wards, granted him permission “ to erect out of the funds of said wards, a building upon their lot in Natchez, of such dimensions and quality as may' suit their interest.” Under that order, S. contracted with P. for the erection of a building : when the contract was completed, there were not sufficient funds to pay the expense, and P. filed his petition in the circuit court to obtain an order for the sale of the lot and building under the mechanic’s lien law. To this petition a demurrer was filed on behalf of the wards, which was sustained, and the petition dismissed : Held, that there was no error in the judgment of the circuit court.
    Error, from the circuit courtof Adams county; Hon. Charles C. Cage, judge.
    This was a petition filed in the circuit courtof Adams county, to the May term, 1S42, by Charles Payne against Charles F. Merrick and Helen M. Merrick, minor heirs of Phineas F. Merrick, deceased, and William A. Stone, their guardian. The petition states that William A. Stone as guardian of the said minors, applied to the probate court of Adams county, for permission to erect a building for said minors on their lot in Natchez, which was granted by said court at the November term thereof, 1840. A copy of the order of the probate court granting said permission, is filed as an exhibit to said petition, and is in the following words, to wit: “ It is ordered by the court, that William A. and Hannah M. Stone, guardians of Charles F. and Helen M. Merrick, have permission to erect, out of the funds of said wards, a building upon a lot belonging to their estate under the hill, of such dimensions and quality as may suit the interest of said wards.” The petition further states that William A. Stone, guardian of said minor heirs, in pursuance of said order of the probate court, erected a brick house on land belonging to the estate of said heirs, and employed Charles Payne to do the carpenter’s work thereon ; that Payne completed the carpenter’s work, and Stone, as guardian of said heirs, owed him therefor the sum of $3197 67, with interest, and would not pay it; petitioner therefore prayed that the lot and house be sold for the payment of said debt. The guardian and his wards are all made defendants to the petition. The counsel for the minor heirs demurred to the petition on the ground that William A. Stone was not lawfully authorized to make any contract whatever, which could create a lien on their inheritance, and that no contract by him as their guardian is obligatory on them. The court sustained the demurrer, and dismissed the petition, whereupon the petitioner brought the case to this court by writ of error.
    
      J L. Matheiuson, for plaintiff in error.
    The first point to which we would call the attention of the court in the discussion of this case, is the power of the probate court of Adams county to grant the order to Stone as guardian, to rebuild the houses, upon which the plaintiff seeks to enforce his lien.
    It has been decided repeatedly by this court, that the probate courts of this state, in matters over which it has jurisdiction, has a power equal to the superior court of chancery. 2 How. 861; 3 lb. 252, &c. The laws of this state give the probate courts jurisdiction over all guardians and wards. Then it follows that whatever the superior court of chancery is empowered to do in all matters relating to the powers or duties of guardian, &c. can be done by tbe probate courts of this state. We are well aware that courts of chancery will not sanction any extravagant expenditure by the guardian, of his ward’s money, nor will they sanction any unnecessary improvement of a minor’s estate. But that they would not only countenance, but enforce all contracts made by the guardian for the necessary improvements, there can be no doubt. If a fence be blown down or otherwise destroyed, or if any building necessary for the good or preservation of the interests of the estate of the ward be destroyed, the guardian has certainly the power to rebuild them, if not compelled so to do. In this case the houses belonging to the minor heirs of Merrick, of whom Stone was guardian, were burnt down, and the rent of those buildings being the principal if not the only means of their support, it was the duty of the guardian, in order to protect their interests, to rebuild, and certainly it was left to the discretion of the judge of probate whether it was necessary, and if upon the representation of the guardian he deemed it so, the only question left for this court is his power to grant the order to rebuild. In the case of Roberts v. Wilson, 2 Bibb, 597, it was held that equity will compel the performance of a contract by an infant when made by his guardian for his benefit, and to save an estate otherwise in danger of being lost, and in the opinion of this court they reason thus : Thus it is declared that a court of chancery, which in these cases acts upon principles of substantial justice and natural equity, on whom the custody of infants officially devolves, has frequently interposed and held infants to their contracts in cases where at law they would not have been bound. The principle upon which that court proceeds seems to be this, that on one hand, if advantageous contracts were not binding upon the persons contracting with infants, the protection which was intended as a privilege would in that event become a prejudice ; soon the other hand, if no agreements would bind infants either in law or equity, that privilege, at the same time that it protected them from prejudice, would debar them from the possibility of reaping any advantage by contracts, as none would treat with those whom they knew could not be bound. Equity then considers the intrinsic nature of the contract; with what view it is entered into ; whether the friends advise and consent to it; who are parties to it; the extent of its influence, and in what degree it has been executed, and directs the conscience of the infant according as these circumstances affect the agreement, thereby giving to such transactions their just efficiency. See Pow. on Con. Such is the view taken by courts of equity of cases similar in character to the one before the court. Whatever a guardian can do, a probate can order him to do if necessary to protect the interests of the ward. In the case of Borvell’s Heirs v. Buckley, 1 Brock. 356, it is decided that it is within the general powers of a guardian to make a lease of the lands of his ward, and remove in-cumbrances therefrom; and if a guardian convey certain lands of his wards in trust to secure a debt for which other lands are bound by an elegit, and thus discharge the latter from the incum-brance, a court of equity will sanction the contract, especially •if it appears to have been beneficial to his ward. A guardian is bound to rent his ward’s lands, &c. Jones v. Ward, 10 Yerg. 161.
    If then the guardian could rebuild, and the probate court had the power to grant him an order for that purpose, that order must be carried into effect according to the existing laws of the land. This case is a much stronger one than the one referred to in 2 Bibb. There the court sustained a guardian for making a contract subject to a custom only ; here it is a law. The mechanic’s lien law gives the mechanic a lien upon the buildings he erects, and the lot upon which he builds; no building can be erected unless subject to this lien, and the mechanic, if his •employer be in possession of the lot, has a right to its benefits. An innkeeper has a lien upon a horse for his keeping, it matters not to whom he belongs ; and a seaman upon a ship for his wages, whoever may be its owner.
    Taking this view of the case, we certainly are right in thinking that the court below erred in sustaining the demurrer. It is a case of peculiar hardship upon the poor mechanic, if he ■can be thus defrauded out of his hard earnings, and that too in work which he was employed to do under an order of a court of competent jurisdiction. He stands alone, the infants are entrenched behind the bond which their guardian gave for the faithful performance of his trust; if injured, they can have recourse against him and sureties. But the mechanic stands or falls by this decision; which, then, shall be the sufferer, we leave to the wisdom of this court.
    
      Montgomery and Boyd, for defendants in error.
    The plaintiff in error filed a petition in the circuit court of Adams county, to enforce the mechanic’s lien on a lot of land in the city of Natchez, belonging to Charles F. Merrick and Helen M. Merrick, infant heirs of P. F. Merrick, deceased. William A. Stone and these minors, his wards, are the defendants to the petition.
    The basis of the claim is an instrument under seal, signed by Stone and the petitioner, Payne, in which Payne agrees to do certain work, and Stone “doth for himself, his executors, administrators, covenant and promise to and with the said Charles Payne, his executors, administrators and assigns, well and truly to pay,” &c.
    The petition also contained an additional claim for extra work, as provided for in the agreement.
    In addition to this written agreement, the petition set forth and relied upon an order of the probate court of Adams county, made anterior to the date of this agreement, and is as follows :
    
      “ It is ordered by the court, that William A. Stone, and Hannah M. Stone, guardian of Charles F. and Helen M. Merrick, have permission to erect, out of the funds of said wards, a building upon a lot belonging to their estate, under the hill, of such dimensions and quality as may suit the interests of said wards.”
    This was the whole case, so far as it is now necessary to notice it. The two minors appeared, and demurred to the petition; and on argument and consideration, their demurrer was sustained, and a judgment entered against petitioner for costs. No judgment was entered on the demurrer dismissing the petition. And the issue as to Stone, who had appeared and filed a general denial of the petition, remained wholly undisposed of.
    For the defendants in error, we insist, there was no final judgment or decree in the case; and that no appeal or writ of error could be prosecuted till the whole case, as to all of the defendants was disposed of. After such a decree, any one of them could appeal, and they need not all join; but before, no appeal lies.
    2. This was merely a judgment for costs, no judgment went on the demurrer, and however erroneous it may have been, an appellate court even allows or regards an appeal on a judgment for costs alone. No appeal or writ of error lies on a judgment for costs.
    3. The decision on the demurrer was correct. In the first place, Stone’s contract was a personal one, and all his covenants were so. In the next place, it was not in his power to create a lien or encumbrance on the real estate of his wards. The probate court could not give him the authority; and in the order referred to by the petitioner, it is manifest no such authority was intended to be given. The court did not attempt to go further than to authorize an investment of the “funds of the wards.” This was probably an excess of power, but at all events, was quite a different thing from an authority to mortgage, or otherwise encumber the estate of these infants.
   Mr. Justice Clayton

delivered the opinion of the court.

At the November term, 1840, of the probate court of Adams county, upon the petition of Stone, as guardian of his wards, permission was granted to the guardian “ to erect, out of the funds of said wards, a building upon their lot, in Natchez, of such dimensions and quality as may suit their interest.” Under this order of the court, the guardian contracted with the appellant, Payne, for the erection of a building. The contract was completed ; there were no sufficient funds to pay the expense, and Payne filed his petition in the circuit court to obtain an order for the sale of the lot and building, under the mechanic’s lien law. A demurrer in behalf of the infants was filed, which was sustained, and the petition dismissed. From this judgment the case was brought by writ of error to this court.

The first subject for examination is the order of the probate court. If that order do not warrant the sale of the lot, for the expense of the building, or if that court had no power or authority to make an order of that character, then the judgment of the circuit court was correct. If the appellant dealt with a party, having by law but a limited authority, he can have no right beyond what the authority, rightfully exercised, -would confer. Its excess would give nothing beyond the lawful limit. This is true as well in reference to the acts of the court as of the guardian.

A fair construction of the order made by the probate court will not justify the conclusion that it meant to authorize the destruction of the interest of the infants. The language employed is measured and cautious. The building is authorized to be erected out of their funds, and to be suitable to their interest. The building erected was in fact not out of their funds, but upon credit; and so far from being suitable to their interest, it is sought to make it involve the destruction of that interest.

But if the probate court intended, under any contingency, a sale of the lot, had it power to make such order ?

There are two cases in which the sale of an infant’s real estate may be made by the guardian, under an order of that court. First, “when upon full investigation, it may be found that the personal estate and the rents and profits of the real estate are not sufficient for the maintenance and education of the ward.” H. H. 338, sect. 9. Second, “ when, in the opinion of tjiai court, such sale shall be for the interest of the minors.” H & H. 417, sect. 110, 113. But a bare inspection of the statute shows very plainly,, that no sale is contemplated by it, in a state of case like the present.

On the whole, we are of opinion that the probate court has no power to authorize the erection of buildings upon the real estate of minors, which may involve the necessity of selling that estate to pay for them; and we think, moreover, that it was not the intention of the probate court to authorize any such proceeding by the order made in this instance.

We do not undertake to pass upon the rights of Payne i n other respects; but confine ourselves to the remedy pursued. His rights against Stone, or to proceed against the rents and profits of the lot, to the extent that his improvements may have added to them, are matters not now before us, and which we do not touch.

The judgment is affirmed.  