Fidelity & Deposit Co. of Maryland v. Rich & Bros.

Candler, J.

These cases come up on exceptions to the overruling of demurrers, general and special, to the plaintiffs’ petitions. They were separate suits against tbe principal defendant in the court below, as guardian of each of two minor children, and against tbe security on her bond as guardian. As the two cases involved identical questions,- they were argued together in this court, and will be so decided. The substance of tbe petitions was as follows: On a day named, Mrs. E. K. Bigby as principal, and the Fidelity and Deposit Company of Maryland as security, executed in writing a guardian’s bond, payable to Hulsey, then ordinary of Fulton county, and bis successors in office, in tbe sum of $18,000, conditioned upon the faithful performance by the principal of her trust as guardian of Darned minors. There has been a breach of the bonds, in that, on a day set out, the plaintiffs obtained in the city court of Atlanta judgments against Mrs. Bigby as guardian of two of the minors for $510.72 and $223.61 respectively, besides interest and costs. Payment of these judgments was demanded of the defendant therein, but was refused; and the executions issued thereon were placed in the .hands of the sheriff for levy and execution. The sheriff was unable to find any property upon which to levy, and made a return of nulla bona on each execution. The judgments are unpaid, and the plaintiffs are interested in the bond within the meaning of the law for such cases made and provided. Each petition was amended by alleging “ that the said judgment was obtained against the said Elizabeth K. Bigby as guardian, on an account for clothing and other goods sold to the said guardian for the use and benefit of her said ward, the said articles being necessaries for the said ward in her *508 station in life and society, and were proper and legal charges against the ward’s estate.” The ground of special demurrer was that the petition did not specifically set out upon what cause of action the judgment therein referred to was rendered, so that it might appear whether the cause of action was one wherein there could he a binding judgment against the estate of the ward and the surety on the guardian’s bond.

The power of a guardian to make contracts binding upon the estate of his ward is strictly limited. • “ The guardian can not borrow money and bind his ward therefor, nor can he, by any contract other than those specially allowed by law, bind his ward’s property, or create any lien thereon.” Civil Code, § 2555. The contracts “specially allowed by law” do not include a contract for the purchase and sale of goods on credit, even though they be for the benefit of the ward, and properly classed as necessaries. Poole v. Wilkinson, 42 Ga. 540 ; Howard v. Cassels, 105 Ga. 416 . Whatever the binding effect o'n the estate of the ward of a judgment in an action brought on such an unauthorized contract, it certainly does not conclude -the surety on the guardian’s bond, who was not a party to the suit, and who therefore was not bound to see that every defense possible was pleaded against it. Bryant v. Owen, 1 Ga. 356 ; Bennett v. Graham, 71 Ga. 211 ; Gibson v. Robinson, 90 Ga. 756 (2). It necessarily follows that where, in a suit on a guardian’s bond, the petition shows on its face that the alleged breach of the bond was the refusal to pay a judgment based upon a suit on a contract not binding upon the ward’s estate, the suit must fail. This case is easily distinguished from that of Lewis v. Oliver, 96 Ga. 260 , relied on by counsel for the defendants in error. In the case cited it appeared merely that a judgment had been obtained against the estate of the ward, and that upon the execution issued thereon the sheriff had entered a return of nulla bona. Apparently the judgment was a valid lien against estate of the ward' — -in any event, every presumption was in favor of its validity. Here the petition as amended discloses the fact that the judgment was rendered in a suit on a contract which could not bind the estate of the ward, and consequently that there has been no breach of the bond.

In view of what is here held, it is obviously unnecessary, to pass upon the special demurrer. We are of opinion that the peti *509 tion as amended was fatally defective and should have been dismissed on general demurrer.

Judgment reversed.

All the Justices concur.