Opinion
(December Term, 1833.)
A guardian appointed by a Court of Chancery may, by order of the court, rightfully sell the personal property of his ward. And the Act of 1762, c. 69, confers the same powers on the County Courts in this State.
DETINUE for negro slave, Lydia, tried before Seawell, J., at PASQUOTANK Fall Term, 1833.
Kinney for the plaintiff.
Iredell for the defendant.
It appeared on the trial, that the slave Lydia had been the property of the plaintiff, but had been sold by her guardian, by order of the County Court of Pasquotank, which court had jurisdiction of the ward, and by which the guardian had been appointed. This order was made on the petition of the guardian, setting forth that his ward had no other property than the mother of Lydia and her three children, which (280) were all expensive to her.
Upon these facts appearing, the Court instructed the jury, that the County Court of Pasquotank had no authority to order the sale, and no title could be derived from any sale made under it. The jury returned a verdict for the plaintiff. A new trial being moved for and refused, the defendant appealed.
It is conceded in the argument of the case, and is clearly established by authorities, that a guardian appointed by the Court of Chancery, may, by the order of that Court rightfully sell the personal property of his ward. The act of 1762 (c. 69), after reciting "that the greatest part of the estates in this province belonging to orphans are of so inconsiderable value, that an application to the Court of Chancery in many instances will occasion an expense, which the profits of them are not sufficient to defray, and that it has been found by experience, that the court of each respective county, exercising the power of regulating the education of orphans, and the management of their estates, have proved of singular service to them," proceeds in the fifth section to enact" that the Superior Courts and Courts of Pleas and Quarter Sessions, within their respective jurisdictions, have, and shall have full power and authority from time to time, to take cognizance of all matters concerning orphans and their estates;" and in the last section provides "that nothing in this act contained shall be construed to restrain or abridge the power of the Court of Chancery, in any matter or thing relating to orphans or their estates." The enacting words of the Statute are large enough to confer, and the preamble and the proviso above mentioned, seem clearly to indicate an intention to confer, on the courts above mentioned an authority respecting all matters concerning orphans, and the estates of orphans co-extensive with that which belonged to the Court of Chancery; and an opinion favorable to this construction has (281) been before intimated by this Court, in West v. Kittrell, 8 N.C. 493. Unless therefore, something can be found in the body of the act inconsistent with the interpretation, to which we are thus conducted or restrictive of it with respect to certain subjects, this must be pronounced to be a true exposition of the grant of power. It is insisted that sections 10, 11 and 12 of the act contain enactments which are inconsistent with the supposition, that the Court to which this general grant was made, derived authority from it to order or to sanction a sale of slaves by the guardian. Section 10 enacts, that the guardian shall, by order of the Superior or Inferior Court, cause to be sold the perishable estate of his ward (except in the instances thereinafter mentioned), at public sale after advertisement for twenty days giving six months credit upon good security. Section 11 enacts that where the orphan has lands and a sufficient number of slaves to cultivate and improve them, such slaves, unless otherwise ordered by the Superior or Inferior Court, shall be employed on these lands, and all horses, cattle, hogs and sheep shall be kept on the lands until the orphan comes of age; and the 12th provides that where such stock grows too numerous, or it shall be to the advantage of the ward, the guardian may sell by order of the Court such part of it as the Court may think fit. And it is argued that the limited grants of power conferred by these sections to permit a sale of the perishable parts of an orphan's estate, are repugnant to and inconsistent with the supposed general grant of a like power over every part, even the more permanent and valuable part of an orphan's personal estate. But are these sections to be regarded as conferring powers on the Courts? Are they not rather directory to the guardian, indicating the course which he ought to pursue in the management of the estate confided to his care? It may indeed be inferred and very properly inferred from the silence of the act with respect to the sale of slaves, that the law makers did not contemplate such a sale as being generally for the interest of the infant, or consistent with the duty of the guardian. The omission to point out any case in which slaves might be sold, may well be regarded as imposing on the guardian (282) the necessity of supporting an application for permission to sell them be plenary proof that the act was required by the interests of his ward, and imposing on the Court the duty of strictly scrutinizing such an unusual application. But it would be a forced construction to consider these directions as abridging the full chancery powers over the estate of the orphan distinctly conferred by the statute.
By Laws 1789, c. 312, sec. 5, it is enacted that when a guardian shall have notice of any debt against the estate of his ward, he may obtain an order of Court for the sale of so much and such part of the personal or real estate of his ward as the Court shall deem proper; that the same shall be sold on credit, and the proceeds in the hands of the guardian shall be liable in the same manner as assets in the hands of an executor after a scire facias; and that no execution shall be levied on the property of the ward, until twelve months after judgment obtained. We are unable to collect from this act any distinct legislative intent restrictive of the right of the guardian to sell personal property under the sanction of a Court of Chancery, or of the Courts to which a concurrent jurisdiction in relation to orphans and their estates has been given by the act of 1762. Every provision in it may consist with the existence of such an authority to sell personal property. It empowers the Court to designate whether real or personal estate shall be sold, it provides a mode heretofore unknown, whereby the proceeds may be reached in the hands of the guardian; and it makes a salutary regulation to prevent a sale of the ward's property by execution during a period in which the guardian can conveniently make sale on credit of such part of it as shall be most expedient, and collect the proceeds of the sale.
The subsequent acts of the Legislature which have been referred to in the argument, furnished no aid in establishing the proper construction of the act of 1762. They state (283) that doubts have prevailed how far the powers of the Courts extend, and out of abundant caution, make enactments to confer certain powers if they do not already exist, or to regulate their exercise if theretofore conferred.
We find ourselves constrained to say, that the county Courts do possess the authority to order a sale by a guardian of the slaves of his ward, and that a fair bona fide purchaser under such a sale may acquire a valid title to the property. Such sales however are so unusual — the occasions which would justify them are so rare — the dangers of imposition on the Court by misrepresentations of the guardian and of corrupt combination between him and the ostensible purchasers so obvious, that the vigilance of Courts and jurors should be exerted in detecting any fraud which may infect the proceeding.
Whether there has been any unfairness in this sale, has not been submitted to the jury. We hold this to be an all important inquiry, and for that purpose shall reverse the judgment and award a new trial.
PER CURIAM. Judgment reversed.
Cited: Howard v. Thompson, 30 N.C. 370; Williams v. Harrington, 33 N.C. 621; Harshaw v. Taylor, 48 N.C. 514.