
    Chittenden County,
    January Term, 1828.
    
      John C. Thompson vs. Amos Boardman and Henry Boardman.
    
    
      Ji guardian of a spendthrift has, by virtue-of his office authority to sell standing trees from the land of his ward, a^id may receive the money in satisfaction for the timber, or take notes for the price agreed on.
    If such guardian take notes payable to 'himself, for the property thus sold, .the ward cannot dischaige them, even after he is released from his wardship ; more especially, if there be a balance due from him to the guardian for ad•vances, &c.
    If, however, none of the timber, for which such notes were given, had been received by the purchaser before the guardianship be discharged, and thewmd ' refuse to permit it to be taken on the contract, it might 'be a good defence to -an action on the notes.
    This was hn action of Assumpsit on promisory note for $270, dated January 19, 1825. At the trial in the County Court, at November adjourned term, 1826, it appeared that the plaintiff, at the time the note was executed, was guardian tootie Daniel Hurlburt, under the 47th Chap. 4th sec. JV. Comp.. Laws, and and that by virtue of his authority as guardian, he had sold to the said Amos Boardman, a quantity of pine trees from the said Huri-burt’aland, and had taken notes therefor, payable to himself, of which the note in question was one. The defence relied on was want of consideration, and also a discharge of the note by ' Hurlburt, after be was released from his wardship. '
    At the trial in the County Court, the plaintiff, to maintain the issue on his part, offered in-evidence -ths following written instr-ument, which was objected to by the defendant, but was admitted by the court: “Know all men by these presents, that I, J". C, “ Thompson, guardian of Capt. D. Hurlburt,for and in behalf of “ said Hurlburt, have bargained,sold, and conveyed, and do here- “ by bargain, sell, and convey, unto Amos Boardman, a sufficient' “ quantity of white pine trees, now being on lot No. 112, in Es- “ sea?, (said land being owned in fee by said Hurlburt,) to make “ 60000 feet of square timber, cubic measure, to be cut and “ drawn from said land, previous to the first day of April next: “ the said Boardman being under obligation to manage in select- “ ing, cutting, and drawing the timber upon said land, so as not “unnessarily to injure, waste, or destroy the timber upon said' “ land, and to use and account for, according to the terms of this' “ contract, every part of the trees he may cut down, that may be •“■found fit for good and saleable square timber. It is hereby un- “ derstood that the said Boardman, is not intentionally to cut any “ more than 60000 feet, as aforesaid. But if he may, without “ knowing the precise quantity, happen to cutmore, the excess is > “to be paid for, at the rate of $9 per thousand feet. And I, the “ said guardian do hereby acknowledge to have received the full’ “ consideration of this contract,by note of this date, signed by said “ Amos, and Henry Boardman. It is understood that the said f quantity is to .include the timber already cut by said Amos “ Boardman, on said lot, and that no more is to be cut than will “ be sufficient to make up said 60000 feet, including what is al- “ ready cut. ' Said timber to be hereafter cut to be measured “ by said Amos, and Hernán B. Hurlburt. And I hereby discharge said Amos from all accountability on the contract made ■“ heretofore with the said Daniel Hurlburt,relating to cutting tim- “ her on said lot. In testimony whereof, the said Hurlburt has “hereunto subscribed this contract, by his said guardian, this 19th “ day of January, 1825. Daniel Huhlbubt,
    “ By his Guardian, J. C. Thompson.”
    .. It was admitted, that on the 12th day of March, 1825, the said Daniel, was released from his said wardship,
    
      Ch: Adams, Esq. witness for the defendant, testified, that Henry Boardman, paid to him, as attorney of JYathaniel Mayo, April 28, 1826, '$490,31 ¿by direction of said Hurlburt,Í& gave Hurlburt a note for the balance, being $49,69, upon which Hurlburt dischaígéd the said notes, and executed the following instruments, which were objected to by the plnintill, but were admitted by the court; “ Whereas, a contract was made between Amos Boardman and “ Daniel Hurlburt, on the 9th day of November, 1824, for cutting “ timber on lot. No. 112, in Essex ; and whereas the said Amos, “ and Henry Boardman have cut-a quantity of timber on the “ said lot during the past winter, and have this day paid me the “ full consideration for 60000 feet of timber, but have not taken “ that quantity from said lot. Now,therefore, in consideration of “ said payment, I hereby agree that said Amos and Henry shall “ have liberty to cut and carry away from said lot No. 112, a “ sufficient quantity of timber to make up, with what they have “ cut, the said quantity of 60000 feet at any time within one “ year from this date. Daniel Hubleuht.
    “ Burlington, April 27, 1825.”
    “ Know all men by these presents, that I, Daniel Hurlburt, am “ holden, and firmly bound unto Amos Boardman and Henry u Boardman, in the sum of $2000, for payment, fee, dated April “ g7,1825. The condition of this obligation is such, jjthat where- “ as, one J. C. Thompson, pretending to be guardian to the said “ Hurlburt, and under authority of such pretended gurdiansbip, “ did, on the' 19th day of January, 1825, contract with the “ said Amos and Henry to sell them a large quantity of pine tim- “ ber, standing and growing on the land of said Hurlburt, in pay- “ ment of which timber the said Amos and Henry, on the same “ day, executed two promissory notes for $270 each, one payable by 1st of May, then next, the other by 1st June, then next. “ And whereas the said Hurlburt denies the authority ofithe said “ Thompson to sell or dispose of any part of his timber,' or to re- “ ceive payment therefor, and has forbidden the said, Boardman “ to fulfil or carry into effect the said contract, or to pay the said “ notes, as a contract orpaymentbinding on the súdjrjurlburtand ‘‘ the said Hurlburt having agreed to indemnify and save harmless “ the said Boardman, against any and all suits brought by the said “ Thompson against said Boardman, -and against all damage , and “ expense in the premises. Now, ‘-‘if the said Hurlburt, shall well “ and truly keep his agreement with the said Boardman, and in “ all things indemnify and save him harmless,.as aforesaid, in the “ premises, then this bond to be void; otherwise, not.
    “Daniel Hurlbuet.”
    The plaintiff offered in evidence the Mowing deposition; which was excluded by the court.
    “ I¡Erastus D. Hubbell, jun. say that .some time, I think, in May, “ 1835, H. Boardman came into J. C. Thompson's office. Thomp-u 'son enquired of him if he intended soon to pay the Hurlburt- “ notes,as they called them. In answer to which Boardman infor- “ med him that he was about-to pay them over to Hurlburt; at “ which Thompson appeared surprised, and told Boardman that “the notes were his property, and'that lie must not pay them to “ Hurlburt, that if he did, it must be at the risk of having to pay “ them again; to which Boardman said he meant to go safe; that “ before he paid the money to Hurlburt he meant to be secure, '“ and requested the dates and amount of the notes with a view to “ take security; and the notes were shown him by Thompson, “ who told him that he might want security, .for he would have to “ pay the money to him; that the notes were his ; that he had “ given Hurlburt credit for them on book, and that Hurlburt yet “ owed him; which credit of notes to Hurlburt on book, I had “ then previously seen. E. D. Hubbell.”
    The plaintiff offered to prove that at the time of the payment of said notes to Hurlburt, said Hurlburt was indebted to him for advances made, and expenses incurred, as guardian in a sum larger ■than the amount of said notes ; which was objected, to by the defendants, and rejected by the court. A verdict, by the direction of the court, was returned for the defendants; and the cause now came before this court on a bill of exceptions fded “ by the plaintiff to the said decisions of the County Court.
    The case was argued by Thompson and Mien, for the plaintiff, and by Adams and Bailey for the defendants.
   Pkentiss J.

delivered the opinion of the court. The statute, prescribing the powers and duties of a guardian of a spendthrift, authorizes and empowers the guardian to take into Ills possession all the lands, goods, chattels, rights and credits of the ward* and the same to dispose of, and manage to the best advantage of the ward, and his heirs; provided, that he shall not sell and convey the lands of the ward, without the order and permission of the Supreme Court. And if any person shall detain or withhold the lands, goods, chattels, rights, or credits of the ward, the guardian may demand and recover the same by due .course of law; and out of the estate, he is to pay the just debts of the ward, who is rendered incompetent to make any bargain or contract whatever. Comp. stat. p. 374, sec. 14, 15.

By the statute, the guardian of a spendthrift is entitled to the possession, both of the personal and real estate of the ward, for the support of the ward and the payment of his debts ; and by the ' general nature of his trust, he is vested with an authority, certainly not less extensive, than that of a guardian of an infant at common law. In the latter case, the guardian is held to have such an interest in the ward’s estate, as enables him to lease it, to avow for damage feasant, and to bring trespass or ejectment in his own name. (Shopland vs. Royle, Cro. Jac. 98.—Wade vs. Baker, Ld. Raym. 130.—Eyre vs. Countess of Shaftsbury, 2 P. Wms. 103.—Byrne vs. Van Hoesen, 5 Johns. Rep. 67.) — In The King vs. The Inhabitants of Oakley, 10 East, 491, Lord Ellen-borough said, that a guardian in socage-had not a mere office or authority, but an interest in the ward’s estate, and was entitled to the possession of the property. And in The People vs. Byron, 3 Johns. Cas. 53, it was held that the guardianship of an infant under an appointment from chancery, created not merely a naked power, but a power coupled with an interest; that although the guardian had no beneficial interest in the property, yet he had tire dominion of it, pro tempore, and possessed the same authority over it, as an administrator has over the estate committed to his charge. As the statute gives the guardian of a spendthrift the possession and disposition of the ward’s estate, and enables him to demand and recover the same by due course oflaw, it would seem quite clear, that he has not a bare office merely, but is vested with an authority coupled with an interest. . The nature of the guardian’s authority over the estate committed, to his charge must, we think, involve the right, to some; extent 'at least, to cut timber standing and growing upon the land of the ward. Although tim- ' ber so situate is to be regarded as part of the real estate, yet the right, in the case of guardians and trustees, appears to be well established. (Caseof the Marquis of Anandale, 2 Ves. 381.—Inwood vs. Twine, Amb. 417.) By the statute 17 Ed. II., the lands and tenenments of lunatics are to be kept without waste, and in no wise to be aliened. Although, under this statute, timber on the • land is considered as part of the real estate, yet in ex parte Ludlow, 2 Atk. 417, Lord Hardwick was of opinion, that committees of lunatics might exercise the same power, as to cutting it for repairing the estate, as any other discreet person who was owner; and in Oxenden vs. Lord Compton, 2 Ves. 69, the Lord Chancellor observed, that there were cases in which to cut timber upon the estate of a lunatic would be no waste; as if it were wanted for his sustenance,or it had been sold to be used for his support. Indeed, itseems to be settled,that timber may be cut, where the maintainance of the lunatic, the payment of debts, or the interest of the lunatic requiresit. — Ex parte Bromfield, 1 Ves. Inn. 453. If. the guardian of a spendthrift has authority to cut timber, not only for necessary repairs, or to clear the land for cultivation, but also for the support of the ward or the payment of his debts, without being guilty of waste, as appears to be the doemne of analagous cases, it would seem difficult to draw into question the power of the guardian in this respect, or to limit or restrict the exercise of it, otherwise than on an application to a Court of Chancery. But it is to be ob- ■ served, that the timber which was licensed to be cut in the present case, was contracted and sold to Amos Boardman, the principal defendant, by Hurlhurt himself previous to his being put under guardianship. In place of that contract, a new contract by the plaintiff, after his appointmtment as guardian, was substituted, taking the note in question, and one other note, for the price of the timber, and discharging Boardman from his liability on the old contract. The transaction on the part of the plaintiff, therefore, was, in fact, a mero renewal by him, in his capacity of guardian, of the coutr.act previously made by Hurlhurt. But whether the transaction is considered in this light, or as ap original sale of die timber by. the plaintiff there does not appear to be any excess of authority on his part; and he was undoubtedly competent, either to receive the money in satisfaction for tire timber, or to take notes for the agreed price. He took tire defendants’ notes for the price of the timber, as he was legally authorized to do, and there can be no question but that there was a sufficient consideration for the notes.

It cannot be pretended, that the discharge of the guardianship annulled,vacated,or in any way invalidated any of the acts performed by the plaintiff, within the scope of his powers, while guardian -, and the notes being founded on a sufficient consideration, and binding in their creation, the subsequent discharge of the' guardianship cannot affect their validity. When a guardian malees a contract, as such, he binds himself, and not the ward, and an action upon the contract must be brought against the guardian.— It is held that the guardian of an insane person cannot make his ward liable to an action, as on his own contract, by any promise which the guardian can make ; and if he gives a note for the debt of his ward, describing himself as guardian, he will be personally liable, although the guardianship be discharged.—Thatcher vs. Dinsmore, 5 Mass. 299. The plaintiff, as we have already seen, had not a bare office or agency merely, but an authority coupled with an interest ; and the contract with respect to the timber was, in law, as well as in fact, a contract between the plaintiff and Boardman, and not between Hurlburt and Boardman. If the beneficial interest in the contract was in Hurlhurt, yet the legal interest was in the plaintiff, and the notes were executed to him, and vested a legal right of action in him. If Hurl-hurt, then, after the discharge of the guardianship, could be permitted to 'receivejpayment and discharge the notes, it could only be upon the ground that the-notes were taken by the plaintiff in trust for him, and he was equitably entitled to the money due upon them. But he could have no equitable right to the money, if tliere was a balance due to the plaintiff for advances. This, it appears, the plaintiff offered to shew; and the testimony, if it had been admitted, would have been a full answer to all right claimed by Hurlburt, in e'quity, to receive’ the money upon the notes, and clearly shown that 'the payment of it to him, by the defendants, could not be justified on that ground.

'' Indeed, if it were to be considered that the plaintiff was vested' with a bare office merely, giving him a naked authority only, it would be certainly just, on the facts- offered to be proved by him, ■ to allow him to enforce payment of the notes. He offered to prove, that he had made advance's to a greater amount than the notes, and had passed the notes in account to Hurlburt, of which the defendants had notice before they made payment to Hurlburt. On these facts, we think that the plaintiff, in any view of the case, would have a right to the money due upon the notes, and that the ■ páyment to Hurlburt, after the notice given, could not avail the defendants'. It is not necessary, nor do we intend to say, that- a guardian, after the termination of the guardianship, has a lien for his disbursements upon the unappropriated goods of the ward. In Norton vs. Strong, 1 Con. Rep. 65, it was determined contrary, however, to the opinions of Reeve, Ch. J. and Baldwin J. that on the termination of the guardianship by the death of the-Ward, the whole of his personal estate vested in his executor, and the guardian had no lien upon it for disbursements made in the lifetime of tire ward. - Admitting this decision to be right, it does not touch the question, whether a guardian, who- has taken security to himself for goods sold, or a debt due the ward,, having a balance due him, and giving notice of the same, has not aright to the money, notwithstanding his office has ceased, which cannot be defeated by payment to the ward or his representative. It is- the duty of the guardian not only to provide for the support of the ward and his family, but out of his estate to pay his just debts ; and if the guardian has made advances for these purposes, as it may be often necessary for him to do, to prevent a sacrifice of the ward’s estate, it would not be consistent with justice, that in the event of his being discharged, or his guardianship ceasing by the death of the ward, the ward in the one case, or his representative in the other, should be entitled to receive payment upon all securities taken by the guardian, and which he has appropriated to himself as a fund, and the only’one perhaps he has out of which to reimburse his advances.

Thompson and Alien, for plaintiff..

Adams and Bailey, for defendant,

It does not distinctly appear from the statement of the evidence offered by the plaintiff, whether the advances were made by him, before or after the notes in question were taken. If the advances were made after, and on ,the credit of the notes, the case would be still stronger for the plaintiff. Although the mere passing the -notes in account to Huflburt would not be equivalent to-a payment over to him? or bind him to account for the amount at all events, yet, if the plaintiff was, led to make advances in consequence of the notes, he ought to be allowed to enforce payment of them, notwithstanding the guardianship is discharged. But in the view we have taken of the subject, it is immaterial whether the advances were made before or after the-notes were taken. In either case, the plaintiff, on the facts offered to be proved by him, would be entitled to recover the money due upon them.

If none of the timber,--for which the notes, were;given, had been received before the guardianship was discharged, and Burlburi had refused to permit it to be taken on the contract, it might he a good defeuceto tire action, on the ground that th.e consideration -of die notes had failed. But it-.appears .that; the principal part of the timber was taken before the guardianship was discharged,and the part not taken co.uld only be a defence pro tanto;

Judgment reversed, and cause remanded to the County Court for anew trial. „  