
    Benjamin G. Ryan vs. The Ex’ors of Benjamin Gallman.
    
      Guardian mid Ward — Jurisdiction—Assumpsit.
    A guardian converted the slaves of Ms ward to his own use, by selling them without leave of the Court, and after his ward arrived at age, settled with him without bringing the proceeds of the sale into the account.' He had never made mention of the slaves, or of the proceeds of their sale, in any of his returns to the Court. Held, that the ward might maintain an action of assumpsit at law against the executors of the guardian, for the money arising from the sale of the slaves.
    BEFORE MUNRO, J„ AT EDGEFIELD, FALL TERM, 1858.
    The report of his Honor, the presiding Judge, is as follows:
    “ The action was assumpsit — the only counts in the declaration were the money counts, and the only one of these relied on by the plaintiff, was the count for money had and received, under which he claimed to recover, according to the bill of particulars, the value of the slaves Kellah and child, Lymus and Jack, the sum of four thousand dollars, being money had and received by the testator in his lifetime, to the plaintiff’s use.
    “The leading facts of the case, as disclosed by the testimony, were these:
    
      “ The testator, Gallman, had six daughters, one of whom, named Bachael, intermarried with one John E. Byan. Of this marriage, the plaintiff was the only issue. He was born in the mouth of May, 1829, and in eleven days after his birth, his mother departed this life. The plaintiff’s father John E. Byan, survived his wife but a few'years, having died either in the year 1831 or 1832, intestate, and administration was taken out upon his estate by one Oliver.
    “ It further appeared, that .testator’s daughters were entitied to a fund from the estate of a deceased uncle, named Eyan, whether in equal portions or not, did not appear, nor is it at all material to know, except as to the portion to which the plaintiff’s mother was entitled, which was three hundred and seventy-two dollars.
    “The entire fund coming to the daughters from Eyan’s estate, was received by the testator as their guardian.
    “On the 28th of November, 1828, the plaintiff’s father and mother executed a receipt to the testator for three hundred and seventy-two dollars. At the time of giving the receipt, however, as was testified to by Mrs. Gallman, who was examined by commission, no money was paid by the testator to Eyan and wife, but that some three or four years afterwards, the testator substituted in lieu of the money, the girl Lucy, mentioned in the bill of particulars.
    “ The same course, according to the testimony of the same witness, and of Mrs. Eyan, one of testator’s daughters, the testator appears to have pursued in relation to his other daughters, taking from them receipts for their 'respective shares out of the Eyan fund, and at some subsequent period, substituting in lieu of the money, a negro or negroes. That Lucy went into the possession of the plaintiff’s father, was fully established by the testimony of Benjamin J. Eyan, who said, that he had seen a bill of sale for the girl Lucy, which had been executed by the testator to his brother, John E. Eyan; that he, the witness, had purchased Lucy from his brother, and after having possession of her for some time, he became apprehensive that the title was not good, and rescinded the contract.
    “ Upon the death of the plaintiff’s mother, as before stated, his grandmother, Gallman’s wife, took charge of him, and the girl Lucy was assigned as his nurse. Lucy remained in the testator’s possession up to the period of his death, which happened in the year 1855, during which time she had six children, and is now in the possession of the defendants, his executors; and although the estate of the plaintiff’s father at the time of his death was considerably embarrassed, Oliver, the administrator, made no attempt to assert any claim to her. The testator’s declarations during the time that Lucy was in his possession, running back as far as the year 1834, and coming down to a period shortly preceding his death, were testified to by the witnesses Kenney, Carpenter, Eyan and Christie, the purport of which was, that whenever he spoke of Lucy and her issue, he invariably spoke of them as belonging to the plaintiff.
    “In 183-, the testator was appointed by the Court of Equity, guardian of the person and estate of the plaintiff. In the first return which he made to that Court, which was in 1837, he returned as the estate of his ward, four thousand dollars in money, which he had received from the Commissioner in Equity. In another return, which was in 1843, he returned for the first time a negro boy named Whitfield, of the value of four hundred dollars. This boy was proved by Mrs. Susan Eyan to have been a gift by the testator to the plaintiff, at which time he had also made a gift of a negro to each of his own children. In none of his returns, however, to the Court of Equity, is any mention made of Lucy or her issue.
    
      “ Some time in the year 185-, the slaves Kellah and child, Lymus and Jack, the issue of Lucy, and whose value the plaintiff now seeks to recover, were removed to one of the southwestern States by one Mosely, a son-in-law of'the testator, to whom they had been delivered by the testator as a gift. In 1850, the plaintiff became of age, and in 1852 he was married; and either in the latter part of 1853, or in the early part of 1854, according to the testimony of the testator’s widow, who was examined by commission, and whose testimony, so much of it at least as relates to this branch of the case, should be printed along with the'brief — the plaintiff and the testator came to a final settlement; that the former had given to tbe latter a receipt, which she said was in her possession ; but although required by one of the cross-interrogatories to produce it, she nevertheless failed to do so.
    “When the plaintiff closed his case, the defendants’ counsel moved for a nonsuit on the following grounds:
    “1. Because the allegation in the declaration was, ‘that the defendant had promised in his life time;’ whereas the allegation should have been ‘ that the testator in his life time had promised.’
    “2. That inasmuch as the testator had disposed of the slaves by gift and not by sale, the action for money had and received would not lie.
    “3. That plaintiff’s remedy was in equity, and not in law.
    “ I sustained the defendant’s motion, preferring however to rest it upon the last-mentioned ground, namely, that the remedy was in equity, not in law.
    “ The views which presented themselves to my mind were ■ these: assuming the plaintiff’s title to the slaves in question to have been perfect, Grallman being in possession of them at the time he was appointed the plaintiff’s guardian, the trust created by his appointment attached to these slaves, as much so as to any other species of property which was in his hands belonging to his ward, and his omission or failure to include them in his returns to the Court of Equity, could no more affect the trust than would his total failure to make any returns at all — assuming then that a final settlement had taken place between the plaintiff and his guardian, and a release executed, it is as fair to presume that the value of these slaves had been brought into that settlement, as it is to infer that the guardian had fully accounted to his ward for the balance of his estate. But assuming, as was done, in the argument in opposition to the motion, that at the time of tbe settlement the plaintiff was not apprised of bis right to tbe slaves in question, in consequence of the fraudulent conduct of bis guardian in concealing from him all knowledge of tbe fact — however difficult it may be to sustain such an impression, from the conduct and declarations of the latter, during the whole time that tbe slaves were in his possession, and as testified to by tbe plaintiff’s own witnesses, it is nevertheless manifest, that the only tribunal competent to entertain jurisdiction in such a case is the Court of Equity. But if on tbe other hand no settlement had ever taken place between the plaintiff and his guardian — and which I thought was the true inference to be drawn from the testimony, then I thought it too clear for doubt, that this Court could not entertain jurisdiction of the case.
    “ I have stated above that tbe slave Jack was a gift by tbe testator to Mosely at the time be gave Kellalr and child, and Lymus. This I am inclined to think is a mistake — my impression is, he was sold by tbe testator.”
    The plaintiff appealed, and now moved this Court to set aside tbe nonsuit, on tbe ground:
    Because his Honor erred in holding that tbe Law Court has no j uf isdiction in tbe case.
    
      Moragne, for appellant,
    cited, Broom’s Com. on Com. Law, 131 (m); Roper vs. Holland, 3 Adol. & Ellis, 39 ; (30 Eng. Com. Law Rep.;) Mann vs. Mann, 2 Rich. 123 ; 2 Story Eq., sect. 1041; 2 Story Eq., sect. 962; 1 Story Eq., sect. 452; 3 McC. 247.
    Bauskett, contra,
    cited, 1 Rich. 359; 3 McC. 509 ; 4 McC. 121; 4 McC. 33; 4 McC. 547; 3 McC. 143 ; 2 Wms. on Ex’ors, 1384; 2 Wms. on Ex’ors, 1373.
   The opinion of the Court was delivered by

O’Nball, J.

In this ease the plaintiff alleges, that the negro slaves Kellah and child, Lymus, and Jack, were his property, and that the deceased converted, by selling them and receiving the proceeds, and he, therefore, brings an action against the defendants, his executors, for the money which the deceased received from the sale.

That such an action is maintainable ánd proper, cannot be doubted. 1 Chitty Plead. 57.

The plaintiff’s proof certainly may satisfy a jury, as to his title, and if it can have that effect, he is entitled to have their judgment upon it, unless there be something else in the case.

It is said, that the deceased was the guardian of- the plaintiff, and that on his arriving at full age, he settled with him. This is not denied, but it is alleged, that the price of the slaves was not embraced in that settlement. That is another fact, which must be passed upon by the jury, and cannot be assumed.

The motion for nbnsuit was granted, on the ground, that the plaintiff’s only remedy was in equity. It is very true, that a guardian is generally only accountable, in equity, and that he cannot be made answerable at law, until such account be had, and a sum fixed, with which he is chargeable.

But although this is the general rule on the accounts of a guardian, it by no means follows, that this exempts him from every action at law. If he had specific property belonging to his ward, and sold the same without authority, it is then entirely optional with the ward, on attaining to full age, whether he will charge him, on an account in equity, with the proceeds, or pursue him at law with an action of trover for the value of the property; or if he be dead, charge his executors with the proceeds of the sale, in an action of assumpsit.

These principles, it seems to me, are so perfectly plain and obvious, that I do not attempt to fortify them by authority. That they are plainly applicable to this case cannot be denied.

The deceased, according to the proof, acknowledged the slaves to be the plaintiff’s property. It does not appear that he had any authority to sell or dispose of them.

It may be, that the father of the plaintiff once had title to Lucy, the mother of Kellah, Lymus, and Jack, but in his life time he placed her in the possession of the deceased, and from 1831 or 1832, (when he died and administration was granted to Oliver,) no claim on his behalf has been asserted. A period of non-claim for more than twenty years, will certainly presume his title to be extinguished; and connected with this, the admission of the deceased, that Lucy and her increase belonged to the plaintiff) may fix, according to reasonable belief, the title in him.

It does not appear, from any of the returns of the deceased, as guardian, that he at all noticed Lucy and her increase as in his possession, by virtue of his guardianship.

It may have been, as is urged, that he held them under some parol trust, -which made it improper that they should 'be so noticed.

The motion to set aside the nonsuit is granted.

Wardlaw, Withers, and Whither, JJ., concurred.

Motion granted.  