
    Samuel P. P. Fay, Judge, &.c. versus Isaac Hurd Junior et al.
    
    F mortgaged land to C. with condition for the payment of a sum of rioney due to a minor, of whom C was guardian. C not wishing to retain the guardianship, the judge of probate made a decree appointing R guardian, “ he giving bond as the law directs ” ; and a letter of guardianship was made out in the probate office, indorsed, " to be delivered to R when bond is filed.” R never filed a bond nor received the letter of guardianship, but he assumed to act as guardian ; and no decree was passed discharging C from the trust. R, after his appointment as above stated, sold the mortgaged premises as the agent of F. C claimed the money of the purchaser, on account of the minor, and part of it was paid to him ; the residue was afterwards paid to R in the presence of C, and R gave the purchaser a deed from F, and C discharged the mortgage. The money was immediately paid over by R to C. C testified that he received it in discharge of a debt due from R, and not for the use of the minor. Another witness testified, that being called upon by C to pay a note given by F to C, he told C he thought the land was sold for enough to pay the mortgage and this note ; C replied, that the mortgage had been paid to him, but that he had received nothing towards the note.
    
      Held, that R was the agent of C, as well as of F ; and that C should be considered as having received the money for the minor, as otherwise fraud must be presumed, and that F was discharged from his liability to the minor.
    
      It seems, that the proceedings in the Probate Court, and the doings of R, did not constitute him the guardian of the minor ; and that C continued in that office.
    This was an action upon a bond given to the judge of probate, in 1814, by Hurd, as guardian of Julia Danforth, then a minor, and by Luther French and Joseph Locke, the other defendants, as his sureties
    The parties stated the following facts.
    On March 16,1816, Hurd, at his own request, was dismissed from his guardianship, and Josiah Crosby was on the same day appointed guardian in his room.
    On December 4, 1816, Hurd settled his account as guardian, in the Probate Court, when there was a balance against him of 478 dollars 48 cents. It appears by a writing on the account, signed by Crosby, that he was present and made no objection. Hurd having become insolvent, his sureties were called upon to pay the balance above mentioned. It not being convenient for French to make the payment, he, on November 1, 1819, made a mortgage in fee to Crosby, of certain land, for the consideration of 500 dollars, but without any note or other personal security to accompany the mortgage : — upon condition, that if French, his heirs, &c. pay “ to the said Crosby, his heirs, executors, administrators or assigns, one half of the amount of the balance due from Isaac Hurd junior to Julia Danforth, for whom the said Crosby is guardian, according to said Hurd’s settlement in the Probate Court as late guardian to said Julia, with interest on said amount, within six months from this date, then this deed shall be void ; otherwise,” &c. The deed was immediately acknowledged and recorded.
    Crosby not wishing to retain the guardianship, Julia Dan-forth, in March, 1823, being then eighteen years of age, made choice of William Richardson as her guardian, and on the 5th of that month the judge of probate made a decree appointing Richardson guardian, “he giving bond as the law directs.” A letter of guardianship was made out, but not delivered to Richardson, on which the register of probate indorsed the words,— “ To be delivered when bond is filed.” And at the same time Crosby settled his account of guardianship, to which Richardson assented by his signature to the following words, written on the account by the judge of probate. “ Having seen the within account of Josiah Crosby, hitherto guardian of Julia Danforth, (to which minor I have this day been appointed guardian,) I have no objection to make thereto. March 5, 1823.” No decree or order was made by the judge, that Crosby should be discharged from his trust of guardian, nor is there any written request on file in the probate office, for such discharge. Richardson soon after assumed to act as guardian, and continued to do so until his death. On November 24, 1823, he received of Locke, the co-surety with French on Hurd’s bond, the sum of 339 dollars 32 cents, and gave a discharge for the same under his hand and seal as guardian ; and afterwards, on June 15, 1826, he died, without having filed any bond in the probate office.
    French made Richardson his agent for selling the land mortgaged to Crosby, but whether before or after March 5, 1823, did not appear, and Richardson, as such agent, sold the same in April, 1823, to William Bowers, for 685 dollars. Within a few days after the sale, Crosby applied to Bowers, in the absence of Richardson, to know whether he was about to make a payment of money to Richardson. Bowers answered that he was ; whereupon Crosby said the money was coming to him on account of Julia Danforth. Bowers then paid Crosby 50 dollars on account of the purchase, for which Crosby gave him a writing to show that he had paid that sum ; but whether in the form of a receipt or a note, did not appear. Some days after, Bowers presented that paper to Richardson, who allowed the 50 dollars towards the purchase money of the land, Crosby being present but saying nothing in relation to the matter. On May 21, 1823, Bowers went with Richardson to Crosby’s, where Bowers paid the residue of the purchase money to Richardson, and received from him French’s deed of the land, and at the same time Crosby executed a discharge, under seal, upon the back of the mortgage, as follows : — “I acknowledge to have received full satisfaction for the within mortgage deed, and desire the same may be entered in the margin of the record thereof. Witness,” &c. The money paid by Bowers to Richardson was immediately paid over by Richardson to Crosby. But Crosby testified, that he received the money in discharge of a debt due from Richardson to him, and not as the money of Julia Danforth or for her use. It was further testified by Andrew French, the son of Luther, that he having undertaken to pay his father’s debts, Crosby, about a year after the sale of the land, called on the witness for payment of a note of about 200 dollars, which Crosby held against Luther. The witness told Crosby, he thought the land was sold for enough to pay the mortgage and the note. Crosby replied, that the mortgage had been paid to him, but he had received nothing towards the note.
    The question was, whether the defendants were still liable for the sum secured and paid by French in the manner above stated.
    Stearns, for the defendants.
    The appointment of Richardson as guardian was complete, although the bond was not filed; and the sureties of Hurd were justified in making their payments to Richardson. 5 Bac. Abr. 188, 190, Officer, E ; Marbury v. Madison, 1 Cranch, 156, 157 ; Mason v. Dillingham, 15 Mass. R. 170 ; Bucknam v. Ruggles, ibid. 180.
    Either Richardson’s appointment was complete, or Crosby continued to be guardian. No decree was passed, discharging Crosby from the trust. If he continued in the trust, then he received the money as guardian.
    
      
      Oct. 16th.
    
    
      Crosby, by taking the mortgage to himself, his heirs, &c. made the debt his own. At least he thus became trustee for the minor, and was bound to see that the security was appropriated to her benefit.
    But if that was not a payment, the other facts in the case show a payment. The whole amount due on the mortgage is paid over to Crosby, and he discharges the mortgage. It would be a fraud in him to apply the money in discharge of the private debt due to him from Richardson.
    Hoar, contra.
    
    The case of Fay v. Richardson, 7 Pick. 91, shows that Richardson was not the guardian of the minor. Admit that Crosby was the guardian, Hurd is not exonerated from this debt. He must show that it was paid to Crosby as guardian. Giving the mortgage to secure future payment, is not of itself a payment. The burden is on the defendant to show that the debt has been paid.
    If Crosby has acted fraudulently, he is answerable in an action in the proper form and brought by the" proper party. That question cannot come up in the present suit.
    
      Oct. 17th.
    
   Per Curiam.

We think that Richardson never was the guardian. The ease is not like that of Marbury v. Madison. There the appointment by the president of the United States with the advice of the senate, was complete and beyond the control of the president. Here there was only a conditional appointment, and the condition was not performed. We rather incline to the opinion, that Crosby continued in the office of guardian.

When Crosby, being guardian, took the deed of mortgage from French to secure the sum-due to the ward, he became responsible for the debt, and continued so until the payment of the proceeds out of the land mortgaged. He might perhaps have discharged himself by assigning the mortgage to any successor duly appointed, but this has never been done. When the estate was sold, Crosby claimed the proceeds as due to his ward ; and he himself cancelled the mortgage. He received part of the purchase money directly, and the residue through Richardson, who unquestionably acted as his, as well as French’s agent. He either gave up the security of his ward fraudulently, or he cancelled it upon receiving for her the money due. And the latter ought to be presumed, especially as the land was sold for the express purpose of paying that debt. The payment of French was to Crosby, who held the mortgage in trust for the ward. French ought therefore to be discharged.  