
    William T. Long, Resp't, v. William Long, App'lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1893.)
    
    Guardians—Sale op infants’ real estate—Payment of judgment WITHOUT ORDER OF COURT.
    In an action upon the bond of a special guardian, given in proceedings for the sale of infants’ real estate, it appeared that plaintiff and his sister, the infants, some twenty years previous, had petitioned, by their general guardian, for the sale of the land, alleging that there were encumbrances thereon consisting of a judgment of $10,000 and a legacy of $4,000 ; the referee reported in favor of the sale, the report was confiimed, a portion-of the land was conveyed, the guardian received the money, paid the legacy and a portion of the judgment without an order directing him so to do, and thereafter died. ' Plaintiff claimed that such payment of the judgment was a conversion, because no order directing the same had been obtained. Held, that as plaintiff had the benefit of such payment it would be unjust to compel the surety to pay the money, and judgment against him should be reversed.
    Appeal from a judgment entered upon the report of a referee.
    
      Abbott & Abbott, for app’It;
    
      J. B. Adams, for resp’t
   Lewis, J.

This action was brought upon the bond of a special guardian given in proceedings in this court for the sale of infants’ real estate, plaintiff being one of the infants, and the defendant, William Long, and one George W. Root uniting as sureties with Duncan McIntyre as principal. McIntyre was the special guardian of the plaintiff and his sister for the purposes of such sale. Plaintiff and his sister, by Duncan McIntyre, their general guardian, made and presented to this court their petition, dated February 1, 1868, for the sale of their lands. The petition was in due form, and alleged that said infants were entitled to certain lands, describing them, but there were encumbrances thereon consisting of a judgment in favor of said William Long for the sum of $10,245, no part of which had been paid, and that they were also encumbered by a legacy of $4,000, and other liens, and prayed that the lands might be sold to pay said encumbrances. There was the usual reference to ascertain the truth of the facts stated in the petition, and whether a sale of the premises, and what part thereof, would be beneficial to the infants, and the reasons therefor. The premises sought to be sold consisted of several pieces of land. The referee reported that the encumbrances on the premises by a judgment, mortgages and a legacy amounted to the sum of $24,245, he reported in favor of a sale, fixing the value of each of the several parcels of land, and the price at which they should be sold.

The report was duly confirmed and an order entered directing said guardian to contract for the sale of the lands at the prices fixed by such report. The guardian reported to the court that he had entered into a contract to sell the “ Gilmore Farm,” that being one of the parcels described in the petition, for $9,150. An order was granted April 20, 1868, confirming said report and ordering the guardian to convey the infants’ interest in said premises on payment of such purchase money. The guardian conveyed and received the money therefor, and applied a portion of said money towards the payment of the Long judgment, and with said moneys also paid a $4,000 legacy, which was by the will made a charge upon the land. The special guardian died more than twenty years ago and his estate has been settled and distributed. After the death of the special guardian the mother of the infants was appointed special guardian in the proceeding in his stead, and other parcels of the land were sold, and the proceeds used in paying other claims against the estate. No question as to the propriety of the payment appears to have been raised for more than twenty years after it was made. This action was brought against the defendant, William Long, as one of the sureties of the special guardian, to recover the infants’ interest in said money so paid upon the judgment. It is the plaintiff’s corn tention that such payment by the guardian was a misappropriation and conversion of the funds, for the reason that an order of the court was not previously obtained directing such payment to be made. He further claims that no such order could have been made for such payment, because the judgment was void. The learned referee declined to pass upon the question of the validity of the judgment entered in favor of Long, but put his decision on the ground that it was a misappropriation of the money to pay it out without an order of the court, for the reason that a rule of the court required the special guardian to bring the fund into court.

Whether the judgment was void or voidable is not material, because it is conceded that the claim of William Long against the estate was a valid one for the amount of the judgment. The court could have ordered the claim paid if no judgment had been entered thereon. The only question is as to whether the payment of the claim under the facts and circumstances presented in this case must be held to have been a misappropriation and conversion of the money by the special guardian.

The proceeding was instituted to sell these particular lands to pay the Long judgment It was a debt the estate was liable to pay. All of the proceedings were regular, except that the money was used to pay this debt without an order of the court having first been obtained directing the payment so to be made. Had the facts appearing upon this record been presented to the court at any time after the special guardian had applied the money, a nunc .pro tune order would unquestionably have been granted directing its payment The guardian neglected to apply for such order, perhaps for the reason that there were other parcels of land thereafter to be sold. If such order had been obtained, it would be a perfect protection to the guardian, and to the defendant as his surety. The money was paid without the order, and in violation of a rule of this court; but the estate owned by this plaintiff and his sister has had the benefit of such payment, as they were the residuary legatees of the estate. Had not the property been sold in this proceeding, some other proceeding would have been instituted by the defendant, Long, to subject the land to the payment of his debt, and the other debts of the estate. It is certainly a great injustice to compel the surety now to pay this claim. The plaintiff is not equitably entitled to it, because he has had the benefit of the fund.

Had the plaintiff made application after the guardian had paid the money for an order requiring him to pay the money into court, would not the court have refused it, under the circumstances.

The surety is entitled to make the same defense that the principal could have made. Hughart v. Spratt, 78 Kentucky, 313. Plaintiff charges the guardian with the conversion of the money, when in fact he applied it to the discharge of plaintiff's estate from liability for a debt.

Clearly plaintiff was benefited; then what is the extent of his injury by the wrongful act of the guardian.

This is. not a case of a voluntary payment made by a stranger, giving him no right of action or claim against the debtor; but it , was made by the guardian in good faith in legal proceedings instituted for the sale of the estate for the purpose of discharging it of the debt.

And besides the acquiescence for so many years without instituting proceedings for an accounting, and requiring the money to be paid into court, is. strong evidence, under the circumstances, of plaintiff’s assent to the payment of the money.

Courts have frequently, in the settlement of guardians’ accounts, allowed them credit for advances made from their own funds for the making of permanent improvements to the estate of their wards, when they had no authority so to do without a previous order of the court, if the expenditures were made in good faith, believing that what they did was for the wards’ benefit, if it be made to appear that the court, upon presentation of the facts, would have granted the requisite order. Waldrip v. Tulley, 48 Ark., 300; Kingsbury v. Powers, 22 N. E. Rep., 482.

Should the defendant be compelled to pay this judgment, he would probably be entitled to subrogation, and could reclaim the amount paid from the estate, if a sufficient amount thereof in value could be found in the possession of the plaintiff. But it seems to us that, as the judgment has nothing to rest upon but the absence of the order, justice demands, under the circumstances, that the rule requiring the entry thereof should not be enforced.

There are authorities holding that the supreme court may disregard one of its rules, where to adhere to a strict compliance therewith will work an injustice. This, we think, is such a case.

In the case of Hunt v. Hunt, 58 N. Y., 666, referred to in the referee’s opinion, the special guardian applied the money to the payment of the debts of the father of the infants. The court held there was no authority for such an application without the express authority of the court, but adds the significant remark, “ as such was not the purpose for which the sale was ordered; ” the inference being that, had the money been paid as in the case at bar, the court would probably have held the payment proper.

The judgment appealed from should be reversed and a new trial granted, with costs to abide the event; and the same disposition should be made of the case of Francis A. Dike, against the same defendant, which was argued at the same time and presents the same questions.

Dwight, P. J., and Macomber, J., concur.  