
    Este and Longworth v. D. E. A. Strong and others.
    Decree in equity against guardian, touching the real estate of his ward, does’ not affect the ward unless he is made a party to the original suit.
    Where a guardian has given a lien upon real estate, claimed by and in possession of his ward, such lien can not be overreached by the ward purchasing a paramount title.
    This cause was adjourned from the Supreme Court of Hamilton county. It was a bill to carry into effect a decree pronounced in a case between E. Pearson, and S. R. Miller, guardian of the heirs of Elijah Strong, deceased. The interest in the decree had been transferred to the present complainants, in trust for certain purposes. The state of the case is as follows:
    Pearson prosecuted a suit in chancery against Miller, as guardian of the heirs of Strong, to obtain a decree for the specific performance of an agreement, made as guardian, charging the rents-of a house in Cincinnati, with a balance due Pearson, for erecting the house, upon a previous contract, as guardian, made by Miller, under an order of court to sell part of a lot to improve the residue.
    Miller alone was made defendant, and a decree was pronounced against him for the specific execution of the contract.
    
      Pending the original suit, the defendant, D. E. A. Strong, had attained his full age, and upon proceeding on a petition for partition had become the sole owner of the house and ground in dispute. And before this, Miller had made a lease, as guardian, for a term of years to the other defendants, upon which considerable rents had accrued and remain unpaid.
    This bill was filed against D. E. A. Strong, the legal owner, against the lessees, and the widow, to whom dower had been assigned, to obtain the benefit of the original decree, and was so framed as to have no reference to any matter behind that decree,
    *D. E. A. Strong pleaded in bar.
    1. That the heirs of Strong were not parties to the original suit, and that, although Miller was his guardian when the alleged contract was made, yet before suit brought Miller was superseded and another guardian appointed in his place ; and that before the decree was pronounceed, he had attained his full age.
    To this plea the complainants replied, that the new guardian permitted Miller to act as guardian, in controlling and renting the property; and that the defendant, Strong, after he had attained his age, sanctioned the acts of Miller. The defendant demurred to this replication.
    2. The defendant pleaded that he had purchased and owned the property under a title paramount to that of E. Strong, for whose children Miller acted as guardian.
    And the complainants replied, denying the validity, of the title purchased, and asserting the continuance of the possession under the heirs of E. Strong, and the lease' of their guardian.
    To this replication also, the defendants demurred.
    The decision of the court being confined to these two pleas, it is considered unnecessary to take any notice of the various other facts presented by answers and pleas in the cause.
    C. Hammond, for complainants:
    The original suit was well brought against the guardian aloné. He had the sole power to lease the lands, and to receive the rents. He had equally power to make improving leases. , Contracts made within the extent of his power binds the ward. 7 Johns. Ch. 154; Cro. Jas. 55, 98.
    It was unnecessary to make the ward a party. He knew nothing of the transaction, and was incompetent to litigate the matter in dispute.
    By his subsequent recognition of the acts of the guardian, the ward is concluded. 2 Wils. 129; 1 Swift’s Dig. 58. It makes no difference that this recognition was of a different transaction.
    The second plea is vicious in its principle. He who has incumbered an estate, can not defeat his own incumbrance *by purchasing in a better title. Nor can he, while he remains in possession, compel one, to whom he has given a lien, to controvert, with him, a title he has purchased from a stranger.
    Caswell and Starr, for defendants:
    If the original suit was well brought against Miller, as guardian, yet the decree can not bind the defendant, because he was of age when the decree was pronounced, and ought to have been made a party that he might have examined the existence and extent of Miller’s act, affecting his rights. For the decree subjects rents that have accrued and must continue to accrue after he attained his age. 1 Har. Ch. 76; Coop. Eq. 33, 181; 1 Mad. Ch. 23, 34, 420; 2 Mad. Ch. 142; 1 Johns. Ch. 349; 2 Johns. Ch. 25; 3 Johns. Ch. 311.
    The guardian could make no lease to bind the estate beyond the minority of his ward. 1 Swift’s Dig. 51; Reeve’s Dom. Rel. 326, 334; 7 Johns. Ch. 150; 1 Johns. Ch. 561; 10 East, 494; 2 Wils. 129; 6 Mass. 58; 2 P. Wms. 278; 2 Mass. 55; 1 Wash. 90.
    The guardian does not so represent the estate of the ward, as that suits can be brought against him in relation to it. The ward must in all cases be the principal, and the guardian appointed to make defense may or may not be the regular guardian. 3 Bac. 412; 4 Mass. 436; Newl. Ch. Pr. 36; 1 Swift’s Dig. 51.
    Courts are ever vigilant in protecting the rights of infants. In some cases they are not concluded by their own admissions, and in England a day is given, after they come of age, to show cause against decrees being conclusive upon them. In some cases they have been permitted to do so, against a decree upon answer by their guardians. 3 Bac. 587, 613; 3 Atk. 626; 1 P. Wms. 503; 2 P. Wms. 401; 2 Mad. Ch. 353; 3 Johns. Ch. 367; 7 Johns. 580.
    When supplemental bill is necessary, after decree in original bill, to bring new parties and new interests before the court, it is open to new parties to make all objections against the decree to be rendered, that they might have against the original decree. 2 Mad. Ch. 407; 3 Br. *Ch. 392. And such is evidently the character of the present bill.
    The second plea proceeds upon the principle that the defendant, Strong, does not hold the property as heir at law, or in any connection with the estate of E. Strong, his father ; but by title paramount. The allegation that Miller, as guardian, was in possession and in receipt of the rents, and that neither the defendant nor Hinde, from whom he purchased, was ever in possession, is no .answer. If the Strongs had no title by inheritance, the possession of Miller, as their guardian, was an act of usurpation, and not of right, which can not affect the right he has acquired.
   Opinion of the court, by

Judge Sherman :

The bill, in this case, is filed to enforce a decree of this court, rendered in the case of Pearson v. S. R. Miller, as guardian of D.E. A. Strong and others, children and heirs of Elijah Strong, deceased, charging the rents of certain real estate with the payment of the balance duePearson for improvements made thereon. Itis carefully framed, to avoid bringing into litigation the matters controverted in the former suit. The defendant, D. E. A. Strong, the only party in interest, seeks to avoid the effect of the former decree by ■showing that Miller was not, at the time of filing the bill by Pear-con, his guardian, and that he attained his full age before that decree was pronounced ;• and upon this plea, and the replication thereto, the question is made, whether the decree against Miller is conclusive and ought to be enforced against the defendants without ■reference to the facts upon which it is was founded.

It is a general rule, that upon a bill to carry a decree into execution, the court will not, unless under special circumstances, examine the justice of the decision or the law of the decree; but, if the case be proper for their interference, will specifically execute •the decree. .There are cases whore this rule has been relaxed and the decree been varied, if, upon examining the proofs taken in the cause, wherein the decree was made or the directions given, a mistake has been discovered. Johnson v. Northy, 2 Ver. 409; West v. Skip, 1 Ves. 245.

*It ought to be observed, that at the time of filing the bill ■against Miller, in which the decree now sought to be enforced was rendered, all the defendants to this suit were in esse, claiming the same rights to and interest in the rents in question as they do-now, with the exception that D. E. A. Strong, one of the defendants, purchased, during the pendency of the former suit, the adverse claim of Hinde and wife to the lot out of which the suits in controversy arise.

If this decree should be enforced against the defendant, D. E. A. Strong, it would have the effect of incumbering his property with the payment of a large sum of money, on the ground that Miller, his guardian, had so subjected it, during his minority, without his ever having had an opportunity of showing either that Miller was not, in fact, his guardian at the time the supposed contract for building was entered into; or, if his guardian, no such contract was made, or any other matter going to impeach the justice or legality of the decree now sought to be enforced.

The extent of the power of the statutory guardian over the real estate of his ward, and how far he can lawfully incumber it for improvements or other purposes, it is unnecessary to consider in this case; for, if the power of the guardian be admitted to the extent claimed by the complainants, but has been so defectively executed as to render it necessary for the party claiming, under the act of the guardian, to resort to a court of chancery to charge the estate of the ward, it is proper that the ward should be a party to such suit; and a decree obtained against the guardian, as such, in a suit where the ward was not a party, would not be conclusive upon him. In those cases, where the legal right of the guardian is unquestioned, as to sell the personal property of the ward for his support and maintenance, and the contract-of the guardian has been executed by the sale and delivery of such personal property to a bona fide purchaser, the sale would be binding upon the ward, and the property would vest in such purchaser without his being at all answerable to the ward for the faithful application of the purchase money. But if the contract of the guardian be executory, and it became necessary to resort to a court of chancery for its execution, the ward ought to be made a party to such *suit; and any decree obtained against a guardian, in a suit in which the ward was not joined, would not be conclusive upon him nor enforced against him upon a subsequent bill founded only on such decree against his guardian.

But whatever might be the effect of a decree against the guardian of an infant, in his character of guardian, upon the estate of his ward, the pleadings in this case show that this relation did not', exist between Miller and the defendant, D. E. A. Strong, at the-time of filing the original bill by Pearson nor at any time during-the progress of the suit to its final termination, by the decree now sought to be enforced. Miller was not, at the commencement of that suit, or ever after, the guardian of D. E. A. Strong, and although he suffered the suit to proceed against him as such guardian, without objection or disclosing the fact of his not being' such guardian, neither his silence nor unauthorized acts, however-fraudulent and injurious to the complainants, can prejudice, much-less conclude the rights of the defendant.

If D. E. A. Strong, after he arrived at full age, having a knowledge of the facts, had recognized and sanctioned the act of Miller in pledging the rents accruing from the city lot toward the payment of the improvements made thereon by Pearson, under the-contract of 1817, it would be obligatory on him, and a court of chancery would enforce the contract against him. But this fact can not aid the complainants in this case, their bill being avowedly framed to charge the rents, on the ground of the decree against. Miller, as his guardian, and not upon the contract of 1817, the improvements made by Pearson, and the recognizing that contract by the defendant, D. E. A. Strong, after he arrived at full age.

The decree is against Miller, as guardian of the heirs of E.. Strong, deceased, and subjects the rents of. certain real estate, belonging to those heirs, to the payment of a large sum of money, those heirs not being parties to the suit in which the decree was-made. During the pendency of that suit the interest of all the heirs was vested in D. E. A. Strong, who had attained full age at the time of the rendition of the decree against Miller, and is now the only *one of the heirs of E. Strong, deceased, interested in the lot, the rents of which are charged with the payment of the-claim of Pearson. Miller, the sole defendant in the former suit, although there described as the guardian of D. E. A. Strong, was-not, in fact, at that time his guardian. To consider, under these facts, the decree rendered against Miller, as guardian, conclusive upon the rights and interests of D. E. A. Strong, would be manifestly subversive of some of the plainest and most obvious principles of law and justice. It would be directly adjudicating upon' the property of an individual without giving him an opportunity of being heard, and that upon a pretense which is shown to be-false; for it is evident that the defendant, D. E. A. Strong, the only person claiming title to the property, the rents of which are .-affected by the decree, has never had an opportunity, directly, by himself, or indirectly, by his guardian, to object to the claim of Pearson, to have the rents applied in discharge of the debt due him for the improvements he made.

If D. E. A. Strong had been made a party to the suit of Pearson against Miller, it would clearly have been competent for him to have shown that Miller was not, at the time when the contract to pledg?e the rents was entered into, his legal guardian, or otherwise authorized to act for him, or in any manner incumber or dispose •of his estate. If this decree could be enforced against him, because rendered against one called his guardian, without inquiry into its merits or the facts upon which it was founded, he would be forever concluded from showing that Miller was not in fact his .guardian. This consequence may also result: that an entire stranger, by assuming the name and character of guardian of a minor, may dispose of the personal property, and incumber the real estate of such minor, in such manner as to be binding and conclusive, and the infant be driven to seek a compensation from the intermeddling stranger for the injury he may have sustained.

Whatever, therefore, may be the extent of Pearson’s equitable lien upon the property of the defendant, D. E. A. Strong, to be reimbursed the amount of his expenditures, for lasting and valuable improvements made on said property *in pursuance of the contract of 1817, with Miller, as the guardian of the heirs ■of E. Strong, deceased, the matter contained in the first plea of the defendant, D. E. A. Strong, is a legal bar to the relief sought by the complainants in this bill, framed', as it is, upon the supposition that the decree in the suit against Miller, as guardian, is conclusive upon the defendants, and seeking only to enforce that decree; and that the legal effect of this plea is not changed by anything contained in the replication thereto.

Upon the question growing out of the second plea of the defendant, E. E. A. Strong, the court have never entertained a moment’s ■doubt, E. Strong, the ancestor of the defendant, E. E. A. Strong, was in possession, and claimed title to the lot in question. Upon his death it descended to his heirs at law. A part thereof was sold by the court of common pleas, as his real estate, for the benefit of bis heirs; the residue, improved by Miller as guardian-of those heirs, leased by him, as such guardian, for a term of years, and' the lessor still continues in possession under the lease. If Miller, as guardian of the heirs, was legally empowered to improve the property (a question not made in this ease), and to give a lien upon the accruing rents for the payment of the costs of those improvements, it is not competent for the heirs, by the purchase of a paramount title, to defeat the previous lien, legally acquired.

If Miller had no anthority to incumber the estate, his act of pledging the accruing rents would be inoperative and void. But if he was authorized to incumber it, bis act must be considered as ■ the act of the heirs, equally binding upon them as if they, being of full age, had incumbered it; and it can not be permitted for a party creating a lien on an estate to defeat that lien by any act of his own. It has, upon this principle, been held that a mortgagOR can not defeat the lien of the mortgagee by the purchase of a paramount title to the mortgaged premises. It would also be unjust,, while the defendant is in the enjoyment of the rents and profits of' the estate inherited from his ancestor, to compel the complainants to litigate the validity of the title of a stranger in order to enforce a lien created by the defendant. 
      
      Note bt the Editor. — What acts of guardian bind ward, etc., see also,, for late cases, xiv. 228; xv. 655.
     