
    Painter v. Mauldin.
    
      Motion to Quash Execution.
    1. Guardian’s bond not signed by principal. — A guardian’s bond, in which the name of the principal appears in the body of the instrument, but is not signed by him, is not a statutory bond, and will not authorize the issuance of an execution against the sureties as provided by statute.
    2. Common law l)ond — When such bond is approved and the guardian has acted thereunder, and his liability to the ward is fixed on final settlement, the bond, by virtue of Sec. 2282 of the Code of 1896, is good as a common law obligation, on which the obligors may be sued in a court of law.
    Appeal from Dale Probate Court.
    Tried before Hon. W. W. Morris.
    On May the 12th, 1897, W. C. Matthews made and concluded a final settlement of his guardianship of the estate of Mary and Whitefield Mauldin, and a decree was rendered against him for $606.42, directing that execution issue against him and the sureties on his bond, viz: J. N. Sansburry, G. D. May, and W. It. Painter. Execution urns issued June 15, 1897, and levied on certain property of said Painter, who, thereupon filed his motion to quash the execution. The admitted facts as referred to in the opinion are stated in the sixth ground of the motion, as follows: “Movant shows to the court the following, which he avers to be facts: that on the 30th day of June, 1893, said W. G. Matthews presented to this movant a bond which, on its face, in the body of it, was regular, and Avas for the sum of two thousand dollars, payable to Hon. W. W. Morris, as probate judge of Dale County, Alabama, and his successors in office, which recited that said W. G. MattheAvs had that day been, appointed as the guardian of Mary Mauldin and Whitefield Mauldin, minors, and was conditioned that if said W. G. MattheAvs should Avell and truly perform all the duties Avhich Avere or might be required of him as such guardian, the same should be null and void, otherAvise to remain in full force and effect; that movant Avas not then aAvare that said W. G. Matthews had theretofore been appointed guardian of said minors, or that said bond presented to him, as aforesaid, Avas not the bond to be executed by said Matthews in order to procure his original appointment as guardian of said minors; Avliereas, in fact, as was ascertained by movant, after the above named bond had been taken and approved, as hereinafter shown, said Matthews had theretofore, on to-wit, the 10th day of May, 1893, given bond and been appointed guardian of said minors and entered upon the discharge of his duties as such, and the bond presented to movant was one which said Matthews was then trying to make as a new or additional bond to the one already made by him on the 10th day of May, 1893, as aforesaid; that movant signed the said bond presented 'by said Matthews to him at the instance and request of said Matthews; that the name of said W. G. Matthews appeared in the body of said bond as principal and as obligor therein, but his, said Matthews’, name had not at that timé been signed to said bond by said Matthews; that after movant signed said bond as surety 'he delivered the same to said principal, but that he, movant, did not consent to be bound upon said bond, or that the same should be delivered to the obligee therein, or that.it should be approved, or that said Matthews should be appointed as said guardian to take charge of the person or property of said minors, or enter upon the discharge of any of the duties of guardian, until the bond should be signed by the said Matthews as the principal obligor therein; that said Matthews, contrary to his duty in the premises, and without the knowledge or consent of movant, delivered said bond to Hon. TV. TV. Morris, the then judge of probate court of Dale County, Alabama, without having1 signed the same, and that he has never signed the same, that said TV. TV. Morris, as said judge of probate, with knowledge of the fact that the name of the said TV. G. Matthews was not signed to the. said bond, and without the knowledge or consent of movant, took and approved said bond; that movant never knew of the failure of the said Matthews to sign said bond, or of the approving thereof without his signature thereto, until a long time after the same had been done; that as soon as he ascertained that said bond had been filed and approved without the signature of said Matthews as principal thereto, movant at once notified said TV. TV. Morris, who was at that time, and still is the judge of probate of said county and said Matthews, as said guardian, that he, movant, would not be bound in said bond as surety, and would not, as such, be liable for any act of said Matthews as said guardian for said minors, because said bond was not signed by said Matthews, the person named in tlie body of the said bond as principal obligor therein.” The court overruled the motion, and movant appeals.
    Sollie & Kirkland, Espy & Farmer, for appellant.
    The instruments which, under our law, can operate as the statutory bond of a guardian, are defined in sections 2378, 2385, and 2387 of the Code of Alabama, 1886. Section 2388 renders binding certain bonds, which may or may not be statutory bonds. A bond not signed by the principal is not within the provisions of any of these sections. There can be no suretyship without a principal. There can be no breach of a bond by a guardian not executing it, nor bound by its conditions. Sureties cannot be bound without a breach of the conditions by a principal bound thereby. The bond is a nullity. The appellant has not estopped himself to set up such defense. — State v. Parker, 72 Ala. 181; Gay v. Murphy, 56 Am. St. 'Rep. 496; Board of Ed. v. Sweeney, 48 N. W. Rep. 302; Sail v. Parker, 37 Mich. 590; lb. 39 Mich; 287; City of Sacramento v. Dunlap, 14 Cal. 421; People v. Hartley, 21 Col. 585; Russell v. Austell, 109 Mass. 72; Goodyear Dental Co. v. Bacon, 151 Mass. 460; Terry v. Bcrchard, 21 Conn. 597; State v. Austin, 35 Minn. 51; 55 Minn. 187; Johnson v. Kimball, 39 Mich. 187; Parmer v. Oakley, 47 Am. Dec. 1.
    H. H. Blackman, contra.
    
    The duties and liabilities of a guardian are defined by law. The decree of the probate court on final settlement is conclusive as to his liability, and the sureties on his bond in the absence of fraud. — Gravett v. Malone, 54 Ala. 19; Chilton v. Parks, 15 Ala. 671; ~\Vereborn v. Kinney, 74 Ala. .591. Surety-ship is an undertaking to answer for the debt, default, or miscarriage of another, by which the surety becomes bound as the principal. A bond approved and acted on is binding, and although not strictly a statutory bond, is subject to the remedies prescribed by statute. — 2 Bou. 688; Code of 1886, §§275, 276, 2273 and 2274; Sprawl v. Lawrence, 33 Ala. 674; Leiois v. Lee County, 66 Ala. 480; State v. Flinn, 77 Ala. 100; Steele v. Tutwiler, 68 Ala. 107; McLeod v. State, 13 So. 268; 69 Miss. 221; Hull v. State, 13 So. 38; 69 Miss. 529; Smith v. Jackson, 56 Ala. 25; Chancy v. Thioeat, 91 Ala. 329.
   COLEMAN, J.

Upon final settlement of his accounts by W. C. Matthews as guardian, execution issued against him and certain parties as sureties on his bond. The appellant moved the court to quash the execution, and the present appeal is prosecuted from the orders and judgment of the court upon the motion to quash the execution. There are several assignments of error, but only two material questions are raised. It is an admitted fact, that the guardian himself, the principal, though his name appears in the body of the bond, never signed the bond; and the facts stated in the motion, which are admitted to be true, show that movant has been guilty of no laches or other acts, which can operate as a waiver of his right to insist upon the defect, if indeed it be such. The question is, whether the sureties are bound, and the court’s right to issue execution on the bond. This question has been decided by different courts of great learning, both ways. Some of the authorities may be found cited to the case of Gay v. Murphy, 134 Mo. 98 (56 Am. St. Rep. 496), and City of Deering v. Moore, 86 Me. 181 (41 Am. St. Rep. 534).

It is the opinion of the court that if the bond was not executed by the guardian as principal, as seems to have been admitted, it is not a statutory bond, and did not authorize the issuance of execution against the sureties as provided by the statute. We hold, however, that under the admitted facts, by virtue of section 2282 of the Code of 1896, the bond is good as a common law liability upon which the obligors may be sued in a court of law.

Under the view taken of the character of the bond, it is unnecessary to consider the other questions presented by the record.

Reversed and remanded.  