
    Margaret Johnston, plaintiff in error, vs. John R. Janes et al., defendants in error.
    (Atlanta,
    January Term, 1873.)
    1. Guardian and Ward — Resulting Trust in Favor of Ward.* — If a guardian purchase land, intending to receive a promissory note on other parties, from an administrator in whose hands is the estate in which his ward has a share, and to pay for the land with such note, the consideration of which, is the purchase money of the same land when sold by the administrator, and he does receive the note from the *administrator as the portion of the ward in said estate, and pays the whole price of the land with it, and takes the title to himself, it will so charge the land as a trust in the hands of the guardian, and his vendee who purchases with notice of such facts, as to entitle the ward through her next friend to assert her right of election between the fund thus appropriated, and the land thus purchased and paid for.
    2. Same^-Husband and Wife — Compromise with Ward. — Under the proper construction of the Act of 1866, securing to the wife the property she had at marriage, or that may come to or be acquired by her during coverture, a guardian cannot make a compromise or accord and satisfaction with his female ward and her husband for her .claim against him as her guardian, she being at the time a minor and having married after the passage of said Act.
    3. Same — Compromise Pending Suit against Guardian. — If such compromise be made whilst suit is pending against the guardian in favor of his ward by her next friend, without the authority of the Court or the knowledge and consent of the next friend, it is so far a nullity that no deduction from the claim against the guardian can be allowed for what he may advance as a consideration for the compromise, unless it be shown that the same was applied for the use and benefit of the ward.
    4. Husband and Wife — -Evidence—Admissions—Construction of Statute. — The admissions of the husband offered as evidence by the wife for the purpose of showing, in connection with other testimony, that the marriage was void, and thereby to relieve herself from any effect that his assent to such compromise might have, were properly rejected by the Court, as they are immaterial under the construction given to the Act of 1866.
    5. Guardian and Ward — Evidence—Exemplification of Returns.— An exemplification of the returns of a guardian to the Ordinary, though made several years after the actings of the guardian therein contained, and after the commencement of suit against him by his ward, are, admissible in evidence when tendered by him, and such facts are circumstances, which with the other testimony in connection therewith; may be considered by the jury in determining the weight to be given to it.
    6. New Trial — Verdict Contrary to Law and Evidence — Case at Bar. — Judgment is -reversed in this case because the Court erred in not granting a new trial on the ground that the verdict was contrary to law and the evidence.
    Equity. Guardian and ward. Husband and wife. Accord and satisfaction. Compromise. Prochein ami. Evidence. Returns. Before Judge Harréee. Terrell Superior Court. May Term, 1872.
    Margaret Johnston, a minor, by her mother and next friend, Lydia Johnston, filed her bill against John R. Janes and William Ware, making the following case: Complainant’s father died on the .... day of 186.., intestate, ^'leaving a considerable estate, upon which one Martin P. Still became administrator. The .defendant, Janes, was appointed, and is now the guardian of complainant. At the administrator’s sale of the property of deceased, one Littleton Johnston bid off lot of land number one hundred and ninety-three, in' the fourth district of Terrell county, for $1,005 00, and said defendant, Janes, became security for the payment of the purchase money. In 1862 or 1863 it was agreed between said Janes and Still, the administrator, that Littleton Johnston should turn over his said bid to Janes, as the guardian of complainant, that Janes should take up said Johnston’s note, by giving his receipt to said administrator for so much money •paid to him as guardian, in part of complainant’s interest in her said father’s estate, and that said administrator should convey said land to Janes as complainant’s guardian. This agreement was fully executed, with the exception that the said administrator conveyed said property to Janes, individually, instead of to him as guardian for complainant. Afterwards, in the year 1863, said Janes, claiming said property as his own, in consideration of about $600 00 in gold, conveyed the same to his father-in-law, the defendant, Ware, who has since that time had possession of the same, enjoying the rents and profits, of the yearly value .of about $300 00. The land is now worth about $2,000 00. Complainant repudiates the sale and claims the land. Complainant waives discovery and prays that Ware may be decreed to convey said land to complainant, and to account for the rents and profits; that Janes may be decreed to stand seized of said land as complainant’s guardian; that the writ of subpoena may issue.
    The defendant, Janes, answered the bill, substantially, as follows :
    Admits that Littleton Johnston bid off the land in controversy at the administrator’s sale, as charged in the bill, and that defendant became his security for the purchase money, to-wit: $1,005 00, but alleges that one W. M. Craps became co-surety with him. That the administrator conveyed said property by deed to Johnston, and defendant took a mortgage *on tíre same for the purpose of securing himself as surety for the purchase money, but not being aware of the necessity of having the same recorded, he omitted to take this course until the note for the purchase money was due and in the hands of an attorney for collection, when he was informed that his said mortgage was postponed to other claims, and had thus become valueless. Defendant then thought that it was necessary for him to look after his own interest, and purchased said land from Johnston in his own name, and not as guardian, and paid Johnston by taking up his note held by the administrator. The consideration of the transfer of said note to him by the administrator was a receipt from him as guardian for that much money, as so much paid on account of his ward’s interest in her father’s estate. Defendant represented to the Ordinary of the county the transaction, and proposed to charge himself as guardian with the land, when said Ordinary informed him that this could not be done, “as no authority had been given or could be implied for that purpose.” Defendant then advanced from his own funds to his ward $1,005 00, and loaned it out at interest as her property. This money was repaid in the spring of 1863, and reinvested by him in interest bearing Confederate- notes of the denomination of $100 00 each. This investment was regarded at the time as so good, that defendant paid a premium out of his own pocket to obtain the notes. This money has since become worthless, but through no fault of defendant, and he now tenders it to complainant. Defendant admits the sale to his father-in-law, Ware, but alleges that he was paid therefor in a negro slave estimated as being worth ,$1,005 00. Denies all combination, fraud and collusion, as charged.
    The complainant introduced Littleton Johnston and the depositions of Augustus Jones. These witnesses sustained substantially the allegations of the bill, and showed that Ware purchased with notice.
    The defendants, Janes and Ware, sustained, substantially, the facts set forth in the answer of Janes. Janes further testified *that in 1868 he was approached by one L. Johnston, the uncle of complainant, (not the witness in this-case,) with a view to a settlement of this litigation. Complainant had recently married Phillips. This resulted in a settlement by which the defendant paid $100 00 and took a release, signed by complainant and her husband.
    The deed to the land in controversy, executed by Littleton Johnston to John R. Janes, dated January 1st, 1861, and the release, testified to by Janes, dated November 28th, 1868, were introduced.
    W. F. Orr testified that he witnessed the release officially before it was signed by complainant, that he examined her when separate and apart from her husband, and she stated that she was perfectly willing of her own accord to sign it; that he saw no money paid to complainant, and does not know whether she received any or not.
    Defendants introduced a return made by John R. Janes as guardian for complainant, on November 23d, 1866, to the Ordinary of Terrell county, by which he charged himself with $1,005 00, received from Still, administrator, on January 1st, 1861, and credited himself with expenditures made from May 28th, 1860, and ending May 1st, 1864, amounting in the aggregate to $480 08. This return was admitted over the objection of complainant’s counsel.
    It was admitted, that complainant was married to Littleton J. Phillips in 1868.
    Complainant, for the purpose of proving that said Phillips h^d' a wife at the time he married complainant, proposed to introduce a certified copy from the records of the Ordinary of Heard', county, showing by a copy of the marriage license and the return thereon that one Joseph L. Phillips was married to Ann E. Millow on February 23d, 1860, and to prove by Littleton Johnston that Littleton J. Phillips- had admitted to him that he was the same person as Joseph L- Phillips, but had changed his name. This evidence, upon objection made, was excluded by the Court.
    The jury returned a verdict .for the defendants. Whereupon, *complainant moved for a new trial upon the following grounds, to-wit:
    1st. Because said verdict was contrary to the law and the-evidence.
    2d. Because said verdict was contrary to the following charge of the- Court: “That if the jury were satisfied from the evidence in this case that Janes purchased this lot of land for his ward, or that he purchased it with her money, and these facts were known to Ware at the time he bought, then complainant was-entitled to a decree charging her guardian with the land and the profits thereof.”
    3d. Because said verdict was contrary to the following charge of the Court: “That if the jury believe from the evidence that Phillips was married after 1866, then he had no interest in this property, and if complainant was a minor at the time of the settlement in 1868, then the settlement is void, and they should disregard it in this case.”
    4th. 'Because the Court erred in excluding from’the jury the certified copy from the records of the Ordinary of Pleard county, and the admissions of Littleton J. Phillips, tendered to show a previous marriage.
    5th. Because the Court erred in admitting in evidence the returns of John R. Janes, made after the institution of this suit.
    The motion was overruled, and complainant excepted upon each of the grounds aforesaid.
    Vason & Davis ; A. Hood ; F. M. Harper, by Clark & Goss, for plaintiff in error.
    C. B. Wooten, for defendants.
    
      
      Husband and Wife -— Evidence •— Admissions — Construction of Statute. — Principal case cited with approval in Howard v. Simpkins, 70 Ga. 328.
    
   Trippe, Judge.

No principle is more fully settled than the rule that if a person having a fiduciary character, purchase property with the fiduciary funds in his hands and take the title in his own name, a trust in the property will result to the cestui que trust or other person entitled to the beneficial interest in the fund with * which the property was paid for. As if a trustee purchase with the trust funds and take the title in his own name, the trust results to the cestui que trust, or if a guardian purchase with the money of his ward, a trust will result to the ward: Perry on Trusts, section 127. In such cases the transaction is looked upon as a purchase paid for by the cestui que trust, as the beneficial interest in the money belonged to him, and the identity of the money does not consist in the specific pieces of money or bills, but in the general character of the fund out of which the payment is made and the fund may be followed so long as its general character can be identified: Ibid., section 128. The cestui que trust or ward thus interested may assert her right either to the fund thus appropriated, or to the property which was purchased with it. And this can be done whilst the property is in the hands of the trustee or guardian, or if it be in the hands of their vendee who purchased with notice of such facts.

The .ward in this case married whilst a minor, and after the passage of the Act of 1866, which says, that “all the property of the wife at the time of her marriage, whether real or personal or choses in action, shall be and remain the separate property of the wife, and all property given to; inherited or acquired by the wife during coverture, shall vest in and belong to the wife, and shall not be liable for the payment of any debt, default or contract of the husband.” The question is made, can a guardian, with this Act in force, settle with his female ward whilst she is a minor, because she has married a man of full age. Before the passage of the Act the husband was entitled to all the property his wife owned or inherited, subject only to her equity, and might reduce it into possession by suit or otherwise, and it made no difference whether she was or was not a minor. By section 1830 of. the Code, “a ward on arriving at majority or marrying a man of full age, may apply to the Ordinary for an order requiring the guardian to appear and submit to a settlement of his accounts.” This was enacted before the Act of 1866, and was consistent with the law which gave the wife’s property to the *husband, and only afforded another remedy in addition to one he already had for the enforcement of his rights as husband, to-wit: another means to reduce the wife’s property into his possession. We do not think that the proper construction of the Act of 1866 or of the section of the Code quoted, as affected by that Act, would allow the guardian to make a compromise or accord and satisfaction with his female ward, whilst she is a minor, and her husband for her claim against him as her guardian. The husband has no power or right to demand or make a settlement. The property is not his, nor can it become his by getting it into his possession. A ward during minority cannot make a settlement. If he be a male, though married, it would not alter the case. If a female, she could only demand it under the old law, by virtue of her marriage with a man of full age, to whom the law gave her property. Now, she is as to her property a feme sole, with no power in the husband to demand or receive it. As a feme sole, before marriage, she could not claim it, and the logical result necessarily is, that she stands in relation to her property with all the rights and no more than the male ward has.

When suit is brought for a minor by a next friend who acts by authority of the Court, no compromise with the infant is of any force or effort, which is made without the knowledge or consent either of the Court or the representative of such minor. Even if made by consent of the next friend, it might require the sanction of the Court in the proper way to give it validity. But certainly Courts will not permit minors who are placed under their protection, to be thus dealt with, without their authority or the authority of the one appointed to defend their rights. Here the minor by next friend, instituted suit before reaching majority; the property claimed is largely more than the $100 00 paid as a compromise. When suit was instituted she was under no obligation, or rather had no power to offer to refund, and if the defendant has any right under said payment of $100 00, it is to claim an allowance for it, if it be shown that it was applied for the use and benefit of the ward.

Under the construction given to the Act of 1866, no evidence touching the validity of the ward’s marriage was material, and no injury could result to complainant from the rejection of the sayings of the reputed husband.

The returns of a guardian when allowed by the ordinary, and entered of record are prima facie evidence in favor of the guardian. If they are made long after the transactions occurred, which are contained in them, and after'suit has been instituted by the ward, such facts may be considered by the jury in connection with the other testimony, in determining the weight to be given to them.

We think that under the evidence contained in the record, there should be a rehearing in this case, and reverse the judgment refusing a new trial.

Judgment reversed and a new trial granted.  