Mayor of Baltimore v. Norman

Mason, J., delivered the opinion of this court. At the time the transfer or cancellation of the stock or obligations in question took place, the act of 1843, chap. 304, was in full force. By that act it is provided that, “it shall not be lawful for any guardian, to sell any property of his ward, without an order of the orphans court, authorising such sale or removal, and any sale made without an order of court shall be void, and no title shall pass thereby to the purchaser.” No order was passed authorising the sale or transfer in the present instance, and consequently it was void, and the rights of the plaintiff were not affected by the transaction ; this court regarding it as a sale or removal within the meaning of the act. The remaining question then for us to determine is, can the plaintiff under the present proceeding, remedy the evils which have resulted from the illegal act of his guardian of which he complains ?

The record discloses the facts, that at the time this suit, (which is an action of trover,) was instituted, the plaintiff was an infant, under twenty-one years of age, and that Daniel Sprigg, Esq., was his guardian, duly appointed and qualified as such ; and we are therefore asked to decide whether, under such circumstances, the guardian and not the infant was not the proper party to sue in the present action. As a general rule we concede, that in order to support the • action of trover, the plaintiff must show, not only that he had at the time of the conversion, a property in the chattel either ³⁵⁹ general or special, but that also at the time of the conversion, he had the actual possession, or the right to immediate possession. 1 Chit. Plead., 148, (11th Amer. Ed.) Under the statute of West., 1, 3 Edw., 1 , chap. 49, and West., 2, 13 Edw., 1 , chap. 15, an infant can sue by prochein ami in all cases where his rights have been invaded, and the only ground for questioning the right in the present case, is based upon the hypothesis that the possession of the chattel in dispute, which is the gist of the right to sue in trover, belongs exclusively to the guardian and not to the infant.

In this view of the case we do not concur. For the purpose of sustaining the action of trover, we regard the right of possession as common to both the guardian and infant, the right in the first instance, resulting from the special property in the chattel by virtue of the guardianship, and in the second from the genera] and absolute property in the real owner. The possession, or right of possession in the one, is the right of possession of the other, as against third parties or strangers. In the case of a general as well as a special property to the same chattel in different persons, the action of trover may in most cases, be brought either by the general or special owner, but a judgment obtained by one, is a bar to an action by the other. 7 Cowen, 328, Smith vs. James.

In this State in the case of Hay vs. Conner, 2 Har. & Johns., 347, the right of an infant to sue in trover, has been directly recognized by our Court of Appeals. It is true the particular point does not appear distinctly to have been raised in the argument, though expressly decided, nor does it appear in that case, that the infant had a guardian duly appointed under the act of 1798. It is to be presumed that if a valid objection did exist to the right of the infant to sue in that case, that it would have been discovered and pressed in argument by the counsel, and would have been considered in the learned opinion delivered by the court below. Nor do we think it a material circumstance in the case, that there was no guardian in existence appointed under our act of Assembly.

The mother, the natural guardian, was before the court, who in the absence ³⁶⁰ of a statutory guardian, would have been invested with as full power to sue in such case as the other, and if the right had been exclusive in the former, it would