Brenham v. Davidson

By the Court, Crockett, J.: ■ 1. The deed from Peter Davidson to his wife and his son, Peter A. Davidson, vested the estate in them in equal moieties as tenants in common in fee simple.

2. The price for which the property was sold to Hensley was $18,000, of which there was paid in cash to Peter Davidson as guardian, and to his wife, the sum of $11,633, and the remainder of the purchase-money was paid by the discharge by Hensley of a subsisting lien on the property for $2000, and the surrender of a promissory note for $4334 due to him from Peter Davidson. The court finds that at the time of the sale, the husband and wife agreed that these sums “should be applied to and constitute part of the consideration and purchase-price of said land.” It is clear the guardian had no authority to accept payment otherwise than in cash for the ward’s portion of the purchase-money. But the cash payment exceeded the ward’s portion of the whole amount agreed to be paid; and the wife, with the consent of her husband, having agreed that the discharge of the lien and the surrender of the note by Hensley should be-accepted as payment pro tanto, she will be held in a court of equity to have consented that these sums should be applied towards the satisfaction of her share of the purchase-money. It was competent for her, with the consent of her husband, thus to dispose of any portion of her interest in the fund. (Terry v. Hammond, 47 Cal. 32.) They must be presumed to have known the law, and that the guardian could not lawfully accept anything but money in payment of the ward’s share of the purchase-price; and having agreed that the discharge of the lien and the surrender of the note should be accepted as [357]payment pro tanto, it must be deemed a payment on her account and not on account of the ward.

3. The wife having united in the conveyance to Hensley, she has no longer any interest in the property; and Peter A. Davidson’s share of the purchase-money having been fully paid to his guardian in cash, there is no balance due to him from Hensley or his estate.

4. It is contended that the statute authorizing the sale by the guardian is unconstitutional and void, on the ground that in passing it the Legislature assumed to exercise powers of a judicial nature, which it is forbidden to do by the Constitution.

In examining this question it is to be observed, in limine,' that at the time of the passage of the act there was no general statute in force authorizing the sale of the real estate of a minor, except for his education or maintenance, or the payment of debts. But the statute under review does not authorize a sale for either of these purposes. It does not appear from the recitals of the act that a sale was necessary on either of these grounds. On the contrary, the consideration on which the Legislature apparently acted was that it would be more advantageous to the minor to sell the property and reinvest the proceeds in other property for his benefit—a case not provided for by the general law as it then stood. The act recited that the property was a gift from the husband and father to the wife and minor child, and that after the conveyance he had erected upon it valuable improvements, and desired to remove with his family to another county; and with that view wished to sell the property to invest the proceeds in other property for the benefit of his wife and child. It is then provided that upon qualifying as guardian and executing a bond with sureties in double the value of the property, he may sell it at public or private sale, and upon the confirmation of the sale by the Probate Court, as in other cases, he is authorized, in conjunction with his wife, to execute a conveyance to the purchaser, which shall be effectual to convey the title of the wife and child. It will be observed that there is coupled with the exercise of the power two conditions, viz.: first,