Armitage v. Snowden

Robinson, J., delivered the opinion of the Court. The appellant as surety on a guardian’s bond, was obliged to pay the sum of $8613.41, on account of moneys appropriated by the guardian to his own use. This bill is filed to recover of the appellees’ testator, the money thus misapplied by the guardian, on the ground, that the testator co-operated or colluded with the guardian in committing a breach of his trust. Conceding for the purposes of this case, that the testator would have been liable to the infant children, provided he knowingly aided the guardian in the misapplication or appropriation by Mm, of the trust funds; and further, that under such circumstances, the appellant, as surety on the guardian’s bond, would have been entitled by subrogation to the rights and remedies of the infant children as against the testator, a question we are not to be understood as deciding, the testimony in the record is not sufficient, in our opinion, to entitle the complainant to the relief prayed.

It is proved beyond all doubt, that Haines the guardian, used the moneys belonging to his wards, in the purchase and improvement of certain lots in the city of Baltimore, ¹²² and that becoming embarrassed, he conveyed by an absolute deed to Knell, the testator, the property thus purchased upon a pretended consideration of $ 3700. It further appeared from the testimony offered on the part of the appellant, although denied by Haines and Knell in their answers, that Haines told Knell at the time of the conveyance, that he had purchased the property with moneys belonging to his wards, and wanted to convey it to him, Knell, in order to place it beyond the reach of his creditors, and for the purpose of securing it to the infant children. The conveyance was made in 1861, and the legal title remained in the testator until 1866, when the property was sold, and the whole purchase money paid to Haines, the guardian. It is not pretended that Knell, the testator, ever received it, or in any manner appropriated to his own use, one dollar of the trust funds belonging to the wards, but it is contended that he is liable for having under the circumstances of this case, permitted the guardian to receive the purchase money of the property.

But in this view we do not concur. Knell’s relation to the property was altogether different from that of a stranger who unlawfully enters upon and receives the rents and profits of property belonging to infants. Here the property did not in fact belong to the wards. True, they had a lien upon it for the moneys used by the guardian in its purchase and improvement, and if the moneys thus used constituted the whole original purchase money, a Court of Equity would, upon