Torrey v. Black — 65 Barb. 414

Majority

p. 414

Torrey vs. Black.

Headnote

T. died seised of certain real estate, leaving Mm surviving a widow, and the plaintiff, then an infant, who was Ms only heir. The defendant was' appointed administrator of T., and cut and carried away timber growing- on the lands that descended to the plaintiff. In an action brought by the plaintiff, on attaining his majority, to recover damages for cutting and carrying away the timber, the defendant set up as defences that the timber was cut with the consent and approval of the widow, who was the plaintiff’s guardian in socage; that he afterward settled with her for the timber, and was released by her from all claim therefor; and that after the plaintiff came of age, he ratified such settlement.

Held, 1. That an offer to prove, by paroi, a license from the guardian to cut timber was properly rejected. That the guardian had no authority to give such a license; and being by paroi, it was void, if given.

2. That the release executed by the guardian was also properly rejected as evidence ; it being without consideration.

3. That it was incumbent on the defendant to prove the' facts that must be established to make the release operative against the plaintiff.

4. That loose declarations of the plaintiff, after 'Coming of age, that his matters with the defendant were all settled, and that he had nothing against him, if a certain mortgage was paid, were insufficient to show a ratification by Mm of the acts of his guardian.

5. That as the plaintiff could not sue during his minority, he might sue on attaining his majority, unless precluded by some act of his guardian.

IH 1851 the father of the plaintiff died, intestate, and leaving a large personal estate. He left surviving him a widow and the plaintiff, who "was his only heir. The plaintiff came of age in April, 1871. The defendant was the grandfather of the plaintiff, and he took out letters of administration on the estate of the plaintiff’s father. The grandfather, after taking oqt letters of administration, cut and carried away a large quantity of timber growing on the land that descended to the plaintiff.

The plaintiff, on attaining his majority, brought-this action to recover damages for such unlawful cutting and carrying away. The defence set up in the answer is that the timber was cut with the consent and approval of the plaintiff’s mother, who was his guardian and entitled

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to cut down timber on said premises; and that he afterward settled with" her for the said timber, and was released by her from all claim therefor; and that since the plaintiff came of age he ratified such settlement.

On the trial the defendant offered to prove that the-timber was cut with the assent of the guardian. The evidence was objected to, and the objection was sus-' tained, and the defendant’s counsel excepted.

Evidence was given by the defendant that the plaintiff, since he came of age, repeatedly said that his matters with his grandfather were all settled, except about a mortgage which he had given on the plaintiff’s land by the authority of the county court. On other occasions he said there had been a settlement before the surrogate,, and everything. settled. He had nothing against his grandfather, if that mortgage was paid.

The defendant offered in evidence the paper called a release, by the plaintiff’s mother, to the defendant, in which it is recited that they had settled all matters pertaining to the estate of the plaintiff, and for all moneys raised by the defendant upon mortgage, by authority of the Onondaga county court, and for all the claims that the plaintiff has, or may have, against said defendant, arising or growing out of the estate of the father of the plaintiff ; and each party releases the other from all claims. This evidence was objected to by the plaintiff’s counsel, and the objection sustained and the evidence rejected;'and the defendant’s counsel excepted.

The question of damages was submitted to the jury, and they found a verdict for the plaintiff for $650 ; for which sum, with costs, judgment was entered, and the defendant appealed.

Cutting and carrying away timber, by a guardian, from his ward’s land, is waste, unless it is required for the erection or repair of fences or buildings, or good husbandry requires its re

p. 416

moval, either because the land on which it stands is required for cultivation, or to prevent loss by decay or other cause beyond the control of the' guardian. (McPherson on Infancy, 299-303.)

The guardian in this case did not remove the timber, but permitted the defendant to do it. Unless she had authority to cut the timber herself, she could not authorize another to do it. In Bacon’ s Abr. tit. Waste, 442, it is said that no action of waste lies against a guardian in socage, but an account or trespass. Several authorities are cited to the contrary.

The Revised Statutes (3 R. S. 621, § 1, 5th ed.) provide that if any guardian &c. shall commitwaste during their several estates, of the houses, gardens, orchards, lands or woods, or other thing belonging to the tenement so held, without a special or lawful authority so to do, he shall be liable to an action of waste.

And by 3 R. S. 624, § 1, 5th ed., an action of trespass lies against any person who, without leave, cuts and carries away timber from the land of another, with treble damages.

Besides these remedies, the ward may call on the guardian to account, in equity, for the timber taken.

When waste is committed by a stranger, while the guardian is in possession of the ward’s land, the guardian is not liable for such waste.. (Bacon's Abr. tit. Waste, p. 447.)

If the guardian is not liable for the waste committed by the defendant, she would not be liable in. trespass ; as mere consent that the defendant might commit the trespass would not make her a trespasser. Had the timber been cut by her order, or at her request, so that the wrongdoer was acting as her agent, or in conjunction with her, in doing the unlawful act, the guardian would be liable. (1 Chitty’s Pl. 208.)

If the guardian is not liable for the injury done in cutting the timber, the defendant must be, unless the

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license from the guardian protects him. As the plaintiff could not sue during his minority, he may sue on attaining his majority, unless precluded by some act of his guardian.

[Fourth Department, General Term, at Buffalo,

June 3, 1873.

Mullin, Talcott and M. D. Smith, Justices.]

The offer to prove by paroi a license from the guardian to cut timber was properly rejected. She had no authority to give such a license, and being by paroi, it was void if given. (McGregor v. Brown, 10 N. Y. 114 , and cases cited.)

The release was properly rejected. It was without consideration; nothing was paid by the defendant; and it does not appear that the defendant had any claims against, the plaintiff at the time the release was executed, and which the defendant pretended to release, that could furnish a consideration for the release of the defendant.

The general rule is that a guardian can do nothing to prejudice the rights of his ward. (Jackson v. Sears, 10 John. 435 , 441.)

It was incumbent on the defendant to prove the facts that must be established to make the release operative against the plaintiff.

The declarations of the plaintiff do not show a ratification by him of the acts of his mother. They are altogether too loose and unsatisfactory to be allowed to have such effect.

The judgment must be affirmed.

Cases cited

McGregor v. Brown 10 N. Y. 114 N.Y. p. 417