p. 291and judgment, rendered in December, 1868, were to the effect that plaintiff should recover two hundred and seventy-four dollars, the deterioration in value of the stock between the time of the demand by plaintiff and the trial, and for a transfer of the stock. The defendant appealed.
Sidney V. Smith, for Appellant.
At common law a guardian could sell the personal property of his ward without application to any Court; but it was always considered safer to obtain the direction of a Court of chancery. (2 Kent, 228.) Under our statute regulating the relation of guardian and ward, the power of the guardian to sell any personal estate of the ward without an order of Court is expressly taken away. (Guardian and Ward Act, Secs. 20 and 25; see also Kendall v. Miller, 9 Cal. 591 .)The plaintiff having derived title to the stock through a transfer to and an assignment from “ Augusta R. Josephi, Guardian,” had sufficient notice, or at least was put upon inquiry, as to the title of the stock not being in Mrs. Josephi. The addition of the word “Guardian” to her name was an indication that she did not hold the stock in her own right; it was enough to excite the suspicion of any prudent man. (See Decan v. Shipper, 35 Penn. St. 239 .)G. F. & W. H. Sharp, for Respondent.
The defendant cannot make the defense which it sought to set up, and now urges to defeat the judgment. It issued the stock to Mrs. Josephi, with the simple addition of “Guardian.” If it treated this designation as simply descriptio personae, it cannot now question her right to transfer the stock in the same manner and capacity. If the ward interposed no objection to the proceeding, the company cannot. If the guardian in any manner violated the terms of
p. 292his trust, it is for the Court, or his bondsmen, or the ward to complain.Again, the Court found that the plaintiff took without notice; and the company was bound, therefore, to transfer to him. [George v. Kendall, 15 Wend. 640 .) Having issued the stock to Mrs. Josephi as guardian, it is estopped from questioning 'any transfer made by her in that capacity. (Dyer v. Rich, 1 Met. 180 .)This is an action to recover the value of certain shares of the capital stock of the corporation defendant, which the plaintiff alleges to be his property, and to have been converted by the defendant to its own use.
It appears that one James Michael, deceased, was at the time of his death owner of some thirteen shares of the capital stock of this insurance company, evidenced by a certificate standing in his own name, and that, under the order of' distribution of the Probate Court, these shares came to Michael Prank Michael, an infant son of the decedent, and of whose person and estate his mother, Augusta B. Josephi, was the duly appointed guardian; and upon surrender of the original certificate by her a new certificate was issued to her, which ran on its face to “Augusta B. Josephi, Guardian,” and she thereupon, and without any order of or authority from the Probate Court, sold the stock to Be la Montagnie, “and on the same day assigned the said certificate thereof to him by an indorsement thereon, signed by her Augusta E. Josephi, Guardian.’” The corporation defendant refused to recognize the transfer, and declined to issue a new certificate of stock to Be la Montagnie, upon his proffered surrender of this one.
The first question is, whether or not the sale and transfer, under the circumstances, vested a title to the stock in Be la
p. 293Montagnie. The Court below found in this connection that the latter “had no knowledge that the said Augusta R. Joseph! held the said stock as guardian of Michael Frank Michael, or that said stock belonged to him;’’ but that fact, in our opinion, is of no import. In
Kendall v.
Miller, 9 Cal. 591 , it was held by this Court, that a sale made by a guardian of a portion of the estate of the ward, without authority from the Probate Court, conveyed no title to the purchaser; and the rule announced in that case was subsequently recognized here, at least by fair implication, in
Schmidt v. Wieland, 35 Cal. 343 , as being the correct exposition of the statute in force, regulating the sale of the property of wards by their guardians. We think, too, irrespective of adjudged cases, that the plain intent of the statute is to make void every alienation of the property of the ward, if made by the guardian without the order of the Court; and that the rule, in itself, is one of wholesome application to such sales, whether of the personal or real estate of the ward.
Judgment reversed, and cause remanded, with directions to render judgment for the defendant.
Mr. Justice Temple, being disqualified, did not sit in this case.