State ex rel. Murray v. Bishop

Guardian and Ward : Guardian’s Bond, Action on. — Where a guardian illegally sells and transfers the property of the ward contrary to the Act of Assembly, without a previous order of the Orphans’ Court, and converts the proceeds to his own use, it is no answer to an action on the bond by the ward, that under the Act of Assembly the sale itself is void and passed no title to the purchasers. -:--: Damages, Measure oe. — In such case it is clear that the action could not be maintained, and if nothing else appeared the measure of damages would he the value of the property illegally converted. —i—: -: Cumulative Remedy. — Where the property thus sold and transferred was the stock of an incorporated company, the ward is not confined to his action on the bond, but has the cumulative remedy against the corporation, may repudiate the sale as void and recover the stock thus illegally transferred. -- : -: Damages, Measure oe. — But where the ward has recovered from such incorporated company the value of the shares of stock illegally transferred by the guardian, in the action upon the' guardian’s bond, the measure of the damages is the loss actually suffered from the breach of the condition of the bond. And where-the sale of the stock was held void under the Act of 1843, and it or its value has been actually restored by the corporation, though this fact does not defeat the action on the bond, it reduces the right of the plaintiff to the recovery of nominal damages only. The Entry oe the Suit eor the use oe the Corporation, gives it no Right op Action on the Guardian’s Bond. — Where, under the facts above stated, the suit is entered to the use of the corporation, and actually prosecuted for its benefit, after the restoration of the stock or its value, though entitled its action against the guardian to recover back the price paid him for the stock, it has no right of action on the guardian’s bond.

Appeal from the Superior Court of Baltimore City. This case was argued in the Superior Court of Baltimore City upon the following agreed statement of facts : “It is admitted in this ease that the said Richard C. Murray was duly appointed by the Orphans’ Court for Baltimore City the guardian of his infant children, Margaret A. Murray, William E. Murray and Alice Anne Murray, and that after his appointment he gave bond for the faithful performance of his duties as guardian, which was duly approved by the said Court, a copy whereof is herewith filed, marked No. 1, as part of this statement. “That the sureties in the said bond, who duly executed the same, were Edward Dowling and Edward Boyle, (both of whom died insolvent before the institution of this action,) and Richard Bishop, one of the defendants in the present case. ‘ ‘ That subsequently to the appointment of the said Rich’d C. Murray, as guardian, there stood upon the books of the President and Managers of the Baltimore and Eredericktown Turnpike Road Company one hundred and eighty-three shares of the capital stock of said company, the property of said infants, of which sixty-one shares stood in the name of the said Margaret A. Murray, sixty-one in the name of the said William E. Murray, and the remaining sixty-one in the name of the said Alice Anne Murray, all of which slock was transferred to the said infants (upon the books of the said company) by a certain Charles Eeinour, on the eighteenth day of October, 1855. That the said infants had in like manner standing in their names upon the books of the Union Manufacturing Company twelve shares of its capital stock, which belonged to them in equal several parts or number of shares. That the said Richard C. Murray, guardian as aforesaid, did, on the eleventh day of December, 185t7, sell all of the said one hundred and eighty-three shares of the capital stock of the said Turnpike Road Company, and did afterwards cause the same to be transferred upon the books for said company to the purchasers or purchaser thereof, and that at the time of the consummation of the sale as above mentioned, he did receive, as the purchase money for the said stock, the sum of five hundred and fourteen dollars and sixty-eight cents. That the said Murray also sold and caused to he transferred upon the books of the corporation, the twelve shares of the capital stock of the aforesaid Union Manufacturing Company, being the property, as before stated, of the said infants, and did receive therefor, upon the twenty-eighth day of December, 1857, the sum of one hundred and fifty-six dollars. All the aforementioned sales were effected by the said Murray without any order of the Orphans’ Court authorizing the same, nor did he render any account whatever as guardian to said Court, although frequently cited so to do, but converted and applied the same to his own use. “ That on proper application being made to the Orphans’ Court the letters of guardianship, which had been granted to the said Richard C. Murray, were revoked on the twenty-fifth day of January, 1859, and Margaret A. Murray, originally one of his wards, but having subsequently arrived at the age of twenty-one years, was appointed by the said Court guardian of her infant brother and sister, the said William E. and Alice Anne Murray, in the place of her father, the said Richard C. Murray ; upon the same date the usual bond was duly executed and delivered by the new guardian, and approved by the Court. That after the appointment of the said Margaret as guardian, the said Richard O. Murray was cited before the Orphans’ Court to account for his management of his wards’ estate, but that he never rendered any account of any kind or description whatsoever, nor did he, while guardian, pay over any part of the money received by him for the stocks sold as aforesaid to either of said wards, or on their or either of their accounts, nor has he done so since his removal. That the said Margaret A. Murray, for herself, and as guardian of her sister and brother, applied to the said Turnpike and Manufacturing Companies, respectively, for the value of the stock which had been transferred upon tlieir books to tbe purchasers to whom they were sold by the said Richard C. Murray, together with the interest thereupon up to the date of the demand; but that the said companies refused to pay the money thus demanded of them, except upon the condition that the said Margaret should first cause suit to be instituted upon the guardian’s bond of the said Richard C. Murray in the ordinary manner, and assign the claim in the said suit to them respectively, according to the value of the shares of their respective stocks sold as aforesaid by the said Murray. That these terms were agreed to by the said guardian, and this suit was accordingly instituted, and the said claims against the guardian’s bond transferred to the said Baltimore and Eredericktown Turnpike Road Company, and a certain Daniel B. Banks, President of the said Union Manufacturing Company, (he having been the purchaser of the twelve shares of manufacturing stock sold as above mentioned by said Murray, and having individually paid the amount mentioned in the assignment to him,) by assignments of the ninth and eighteenth of May, 1860, which said assignments are to be taken as a part of this statement, and are herewith filed, marked Nos. 2 and 3. “ Whereupon the said companies respectively paid to the said Margaret the value of the said shares, (as mentioned in the said assignments,) which had stood upon their books in the names of the said Margaret and the said infants, respectively. “That the bringing of said suit and the assignments of the claims as 'above stated, and the authority to enter said uses to the said Turnpike Company and Daniel B. Banks, were all confirmed by and derived from the said Orphans’ Court by an order of the twenty-seventh of June, 1860, and will more fully appear by the petition of the said Margaret Murray and the said order of the Court thereupon passed; herewith filed, marked respectively Nos. 4 and 5, and which are to be taken as part of this statement, subject to their legal operation in the judgment of this Court, and to all questions as to the jurisdiction of the Orphans’ Court in the premises. ££ It is further agreed that if, in the opinion of the Court, the plaintiff shall be entitled to recover upon the foregoing statement of facts other than nominal damages, then judgment in proper form shall be given for the sum of five hundred and fourteen dollars and sixty-eight cents, with interest from the eleventh day of September, 1857, and for the further sum of one hundred and fifty-six dollars, with interest from the twenty-eighth day of December, 1857, with costs, otherwise judgment shall be rendered for the defendants with costs. ££It is also agreed that an appeal may be taken by either party from the judgment of said Court to the Court of Appeals of Maryland, which shall have power to hear and determine the same, and further that inferences of fact may be drawn by either Court from the facts stated.” Exhibits Nos. 1, 2, 3, 4 and 5, forming part of the said argument, were as follows : (No. 1.) This exhibit was a duly certified copy of the guardian’s bonds. (No. 2.) ££ Baltimore, 9th May, 1860. ‘1 Received from the President, Managers and Company of the Baltimore and Eredericktown Turnpike Road, the sum of five hundred and eighty-nine dollars and nine cents, (|589.09,) and in consideration whereof, the undersigned do hereby transfer their claim against Richard C. Murray and his surety, Richard Bishop, to the said Company, and for which said claim suit has been brought against said Richard C. Murray and Bishop, in the Superior Court of Baltimore City, and an order given to have the same entered to the use of said Company; this transfer being limited to the sale of the stock of said Company improperly made. Signed, Margaret Murray, for herself, and Guardian of W. E. and Alice Anne Murray, by T. Parkin Scott, Att’y.” (No. 3.) “ For value received, I assign unto Daniel B. Banks the claim of myself and my two wards, Alice and William Murray, against Richard C. Murray and his securities, for the value of twelve shares of the capital stock of the Union Manufacturing Company of Maryland, illegally sold and transferred by said R. C. Murray, viz : 12 shares sold, a $13........................$156 00 Interest 2 yrs. 4 mos. 18 days............ 22 31 Baltimore, 18th May, 1860. $118 31 T. Parkin Scott, Att’y for Margaret A. Murray, in her own right, and as guardian of Alice and William E. Murray.” (No. 4.) “ To the Honorable the Judges of the Orphans’ Court of Baltimore City: “ The petition of Margaret A. Murray, guardian of Wm. Murray and Alice Murray, her minor brother and sister, respectfully states to your Honors, that the former guardian of your petitioner and of said minors, Richard C. Murray caused to be sold and transferred one hundred aüd eighty-three shares of the capital stock of the President and Managers and Company of the Baltimore and Fredericktown Turnpike Road, on the 11th day of December, A. D. 1851, being tbe property of bis said wards, and received therefor, on the day and year last aforesaid, the sum of five hundred and fourteen dollars and sixty-eight cents. And the said Richard C. Murray did also, on the 24th day of December, A. D. 1857, sell and cause to be transferred twelve shares of the capital stock of the Union Manufacturing Company of Maryland, and being'the property of his said wards, for the sum of one hundred and fifty-six dollars ; that the said Richard O. Murray, former guardian, received the aforesaid sums of money, which he has not paid, nor any part thereof, to your petitioner or either of said wards, nor rendered any account to your petitioner or to this honorable Court. “ Wherefore your petitioner caused suit to be instituted upon the bond of the said former guardian against him and his security, Richard Bishop, the other securities on said bond, Edw’d Boyle and Edw’d Dowling, having departed this life, to recover the proceeds of the sales of said stocks. That since the institution of said suit, your petitioner has assigned a part of her claim therein, to the amount of five hundred and fourteen dollars and sixty-eight cents, to the said Turnpike Company, and has given an order to have the same to said amount entered to the use of said Company. ££ That your petitioner has also assigned the other part of her claim in said suit, to the amount of one hundred and fifty-six dollars, to a certain Daniel B. Banks, of the city of Baltimore, and has also given an order to have the said suit, to the amount last aforesaid, entered to the use of the said Banks. That your petitioner received full value for both said claims. ‘£ Wherefore your petitioner prays that the institution of said suit, and the assignment of said claims and entries to the several uses as hereinbefore stated, may be sanctioned and ratified by the order of this honorable Court. T. Parkin Scott, Sol. and Att’y for Petitioner and the Wards.” (No. 5.) “ In Baltimore City Orphans’ Court, June 27,1860. On application by the petition of Margaret A. Murray, guardian of William Murray and Alice Murray, her minor brother and sister, filed the 23d day of June, 1860, it is ordered by the Court that the institution of the suit mentioned in the said petition, and other assignments of the claims therein stated to a certain Turnpike Company and Daniel B. Banks, and the order to enter said suit to the several uses to the amounts respectively mentioned to the said company and Daniel B. Banks, be and the same are hereby approved, ratified and confirmed. J. Spear Smith, Jos. II. Audottn, Franklin Supplee.” These exhibits were all duly certified. The case being submitted upon the aforegoing agreement and exhibits, the Court below (Martin, J.) entered a judgment o£ non pros, with costs, &c., to the defendants, as per the said agreement. The plaintiffs appealed.