
    LONG v. LONG.
    (Supreme Court, General Term, Fifth Department.
    January 18, 1893.)
    1. Sale op Waed’s Land—Application op Pboceeds—Convebsion. Proceedings were regularly instituted by a special guardian to sell his infant’s real estate to pay a judgment thereon. The referee’s report in favor of sale was confirmed, and after sale the money was applied by the guardian in good faith to the satisfaction of the judgment, without any order of court previously obtained directing such payment, and in violation of the rule of court requiring such order. Held, in an action by the ward., more than 20 years thereafter, against the surety of the guardian to recover the money on the ground that its payment was a conversion of the fund, that plaintiff c'ould not recover.
    2. Same—Validity op Judgment. Whether such judgment was void or voidable was not material where the claim on which it was based was a valid one for the amount of the judgment, the estate being liable therefor if no judgment had been entered thereon.
    Appeal from judgment on report of referee.
    Action by William T. Long against William Long. From a judgment for plaintiff entered on the report of a referee, defendant appeals. Reversed.
    Argued before DWIGHT, P. J., and MACOMBER and LEWIS, JJ.
    Abbott & Abbott, for appellant.
    J. B. Adams, for respondent.
   LEWIS, J.

This action was brought upon the bond of a special guardian, given in proceedings in.this court for the sale, of infants’ real estate, plaintiff being one of the infants, and the defendant, William Long, and one George W. Root, uniting as sureties, with Duncan McIntyre as principal. McIntyre was the special guardian of the plaintiff and his sister for the purposes of such sale. Plaintiff and his sister, by Duncan McIntyre, their general guardian, made and presented to this court their petition, dated February 1, 1868, for the sale of their lands. The petition was in due form, and alleged that said infants were entitled to certain lands, describing them, that there were incumbrances thereon consisting of a judgment in favor of said William Long for the sum of $10,245, no part of which had been paid, and that they were also incumbered by a legacy of $4,000 and other liens; and prayed that the lands might be sold to pay said incumbrances. There was the usual reference to ascertain the truth of the facts stated in the petition, and whether a sale of the premises, and what part thereof, would be beneficial to the infants, and the reasons therefor. The premises sought to be sold consisted of several pieces of land. Thé referee reported that the incumbrances on the premises by a judgment, mortgages, and a legacy amounted to the sum of $24,245. He reported in favor of a sale, fixing the value of each of the several parcels of land, and the price at which' the)r should be sold. The report was duly confirmed, and an order entered directing said guardian to contract for the sale of the lands at the prices fixed by such report. The guardian reported to the court that he had entered into a contract to sell the “Gilmore Farm”—that being one of the parcels described in the petition—for $9,150. An order was granted April 20, 1868, confirming said report, and ordering the guardian to convey the infants’ interest in said premises on payment of such purchase money. The guardian conveyed and received the money therefor, and applied a portion of said money towards the payment of the Long judgment, and with said moneys also paid a $4,000 legacy, which was by the will made a charge upon the land. The special guardian died more than 20 years ago, and his estate has been settled and distributed. After the death of the special guardian the mother of the infants was appointed special guardian in the proceeding in his stead, and other parcels of the land were sold, and the proceeds used in paying other claims against the estate. No question as to the propriety of the payment appears to have been raised for more than 20 years after it was made. This action was brought against the defendant, William Long, as one of the sureties of the special guardian, to recover the infants’ interest in said money so paid upon the judgment. It is the plaintiff’s contention that such payment by the guardian was a misappropriation and conversion of the funds, for the reason that an order of the court was not previously obtained directing such payment, to be made. He further claims that no such order could have been made for such payment, because the judgment was void. The learned referee declined to pass upon the question of the validity of the judgment entered in favor of Long, but put his decision on the ground that it was a misappropriation of the money to pay it out without an order of the court, for the reason that a rule of the court required the special guardian to bring the fund into court.

Whether the judgment was void or voidable is not material, because it is conceded that the claim of William Long against the estate was a • valid one for the amount of the judgment. The court could have ordered the claim "paid if no judgment had been entered thereon. The only question is as to whether the payment of the claim, under the facts and circumstances presented in this case, must be held to have been a misappropriation and conversion of the money by the special guardian. The proceeding was instituted to sell these particular lands to pay the Long judgment. It was a debt the estate was liable to pay. All of the proceedings were regular, except that the money was used to pay this debt without an order of the court having first been obtained directing the payment so to be made. Had the facts appearing upon this record been presented to the court at any time after the special guardian had applied the money, a nunc pro tune order would unquestionably have been granted directing its payment. The guardian neglected to apply for such order, perhaps for the reason that there were other parcels of land thereafter to be sold. If such order had been obtained, it would be a perfect protection to the guardian, and to the defendant, as his surety. The money was paid without the order, and in violation of a rule of this court; but the estarte owned by this plaintiff and his sister has had the benefit of such payment, as they were the residuary legatees of the estate. Had not the propertjr been sold in this proceeding, some other proceeding would have been instituted by the defendant, Long, to subject the land to the payment of his debt and the other debts of the estate. It is certainly a great injustice to compel the surety now to pay this claim. The plaintiff is not equitably entitled to it, because hé has had the benefit of the fund. Had the plaintiff made application, after the guardian had paid the money, for an order requiring him to pay the money into court, would not the court have refused it, under the circumstances? The surety is entitled to make the same defense that the principal could have made. Hughart v. Spratt, 78 Ky. 313. Plaintiff charges the guardian with the conversion of the money, when in fact he applied it to the discharge of plaintiff’s estate from liability for a debt. Clearly, plaintiff was benefited. Then, what is the extent of his injury by the wrongful act of the guardian? This is not a case of a voluntary payment made by a stranger, giving him no right of action or claim against the debtor, but it was made by the guardian in good faith, in legal proceedings instituted for the sale of the estate for the purpose of discharging it of the debt. And besides, the acquiescence for so many years without instituting proceedings for an accounting and requiring the money to be paid into court is strong evidence, under the circumstances, of plaintiff’s assent to the payment of the money. Courts have frequently, in the settlement of guardians’ accounts, allowed them credit for advances made from their own funds for the making of permanent improvements to the estate of their wards, when they had no authority so to do without a previous order of the court, if the expenditures were made in good faith, believing that what they did was for the wards’ benefit, if it be made to appear that the court, upon presentation of the facts, would have granted the requisite order. Waldrip v. Tulley, 48 Ark. 300, 3 S. W. Rep. 192;. Kingsbury v. Powers, (Ill. Sup.) 22 N. E. Rep. 482. Should the defendant be compelled to pay this judgment, he would probably be entitled to subrogation, and could reclaim the amount paid from the estate, if a sufficient amount thereof in value could be found in the possession of the plaintiffs. But it seems to us that, as the judgment has nothing to rest upon but the absence of the order, justice demands, under the circumstances, that the rule requiring the entry thereof should not be enforced. There are authorities holding that the supreme court may disregard one of its rules where to adhere to a strict compliance therewith will work an injustice. This we think, is such a case. In the case of Hunt v. Hunt, 58 N. Y. 666, referred to in the referee’s opinion, the special guardian applied the money to the payment of the debts of the father of the infants. The court held there was no authority for such an application without the express authority of the court, but adds the significant remark, “as such was not the purpose for which the sale was ordered;” the inference being that, had the money been paid as in the case at bar, the court would probably have held the payment proper. The judgment appealed from should be reversed, and a new trial granted, with costs to abide the event; and the same disposition should be made of the case of Francis A. Dike against the same defendant, which was argued at the same time, and presents the same questions. All concur.  