
    George W. Hunt v. J. N. Insley, as Administrator of the Estate of Eli W. Metzger, deceased, et al.
    
    No. 7829.
    Appointment op Guardian — Failure to Give Bond — Mortgage by Guardian. The appointment of a guardian, who duly takes the oath required and receives letters of guardianship in due form, issued by the probate court, is not rendered absolutely void by his failure to give a bond as required by section 7, chapter 46, of the General Statutes of 1889. (Watts v. Cook, 24 Kan. 278, followed.)
    
      Error from Jefferson District Court.
    
    This was an action prosecuted in the district court of Jefferson county on a bond and mortgage purporting to have been executed by J. N. Insley, as guardian of Violet, Ford and Delbert Metzger, and as administrator of the estate of Eli W. Metzger, deceased, to George W. Hunt, the plaintiff in error. So much of the facts as are necessary to an understanding of the questions decided are as follows : Eli W. Metzger, ai’esident of Jefferson county, was in possession of a quarter-section of land under claim of title, a portion of which he platted into town lots. Some lots he sold, and either conveyed by deeds of general warranty, or agreed in writing to so convey. In an action prosecuted in the district court of Leaven-worth county, it was adjudged that the title to an undivided one-half of this land was in one George R. Hines, and a judgment was rendered foreclosing a mortgage given by Hines, and directing a sale of his interest in the land. Afterward Metzger died, leaving three minor children as his only heirs. J. N. Insley was appointed, by the probate court of Jefferson county, administrator of Metzger’s estate, and at the same time, on the application of one of the children, he was also appointed guardian of Metzger’s minor heirs. Letters of guardianship were issued to him, but he never filed any bond as guardian. Thereafter Insley filed his petition in the probate court asking authority to mortgage the land to raise the sum of $2,800, for the purpose of buying in at sheriff’s sale the Hines half interest in said land. Thereupon an order was entered by the probate court authorizing the execution of such a mortgage. In this order Insley is described both as administrator of the estate and as guardian of the minors. Acting under this authority, Insley borrowed from Hunt, the plaintiff in error, $2,000, to secure the payment of which he executed a bond and a mortgage on said quarter-section of land in the names of said minor children by himself as their guardian, also attaching his name as administrator of Metzger’s estate. The mortgage was duly presented to and approved by the probate court of Jefferson county. With the money so borrowed Insley bought in the outstanding half interest in the land, taking a sheriff’s deed to himself, as administrator of Metzger’s estate, for the use and benefit of said estate and of his heirs. Since said purchase the minors have been in full possession of the land conveyed by the sheriff’s deed. Insley gave no bond as required by section 15 of the act concerning guardians and wards. G. A. Huron succeeded Insley as guardian of two of the minor children. The district court made very full findings of fact, and found as a conclusion of law that the bond and mortgage sued on were invalid, and gave judgment in favor of the defendants for costs. Plaintiff brings the case here.
    
      W. F. Gilluly, M. Gephart, and Curtis & Safford, for plaintiff in error.
    
      Bradford Huron, and Morse & Morse, for defendants in error.
   The opinion of the court was delivered by

Aliucn, J.

: Several objections are urged against the consideration of the petition in error and transcript of the record filed in this court, but none of them are valid. The contention on behalf of the defendant in error is that the giving of a bond is a condition precedent to the taking effect of the appointment of a guardian ; that the appointee, although recognized by the probate court, has no right to assume any control over the estate of the minors until a proper bond has been executed and approved. By section 7 of chapter 46 of the General Statutes of 1889, it is provided that guardians appointed to take charge of the property of a minor must give bond with surety to be approved by the court. The only exception to the requirement of a bond seems to be in the case of. a testamentary guardian where the testator by will requests that no bond be required. By section 15 of the same chapter, it is provided that, before any sale or mortgage of the property of a minor can be made, security must be given to the satisfáction of the court in double the value of the property to be sold or of the money to be raised bj^ the mortgage. Whatever the individual views of the members of this court, as now constituted, may be as to the proper construction of section 15, prior decisions of the court have fully settled it. In the case of Watts v. Cook, 24 Kan. 278, it was held that “the failure of a guardian to give security, as required by section 15, chapter 46, Compiled Laws of 1879, upon an order for the sale of real estate, will not render void a sale regularly made and approved.” This decision, rendered in 1880, was followed in the case of Howbert v. Heyle, 47 Kan. 58, decided in 1891, and again in Higgins v. Reed, 48 Kan. 272. While these cases refer to section 15 only, in terms, they are really decisive of the question presented in this case. The language of section 15 indicates much more strongly that the legislature intended to make the execution of a bond a condition precedent to the right to convey or mortgage than that of section 7 does that the giving of a bond should be a condition precedent to the validity of an appointment. The appointment of a guardian precedes the requirement of a bond. There are cases in which no bond need be required. If a bond is given in compliance with’ the requirements of section 7, under the decision in the case of Morris v. Cooper, 35 Kan. 156, the sureties on such bond would not be liable for any misapplication of the funds raised by a mortgage of the minor’s estate; the limit of their liability extending only to the proper care and management of ' the personal estate and the rents and profits of the realty.

Insley was appointed guardian by the probate court, took the oath required by the statute, received letters of guardianship regular in form, and was recognized by the court as the acting guardian. It being the established law of this state that a purchaser or mortgagee need not inquire whether a bond has been given under section 15, it logically follows that he need not inquire as to the giving of a bond under section 7.

The judgment is reversed, with directions to enter judgment on the special findings of fact in favor of the plaintiff for the amount of his bond and interest, and foreclosing the mortgage sued on.

All the Justices concurring.  