#### JAMES IREDELL TO THE USE OF JOHN M. FAUCETT v. WILLIAM BARBEE.

A *alrangot may*accept the delivery of a bond, and it is good, unless tho ob-ligee refuse to ratify the delivery, but in the absence of proof to the contrary such ratification is presumed.

In construing a deed all useless and unmeaning words are to be rejected, provided enough remains to make the deed sensible. Thus, where a bond, purporting to bo a guardian bond, was made T, Governor, &e. Justices of the Court of Pleas and Quarter Sessions, &c. in the sum of &c. *to be*paid to the said Justices or the survivors of them,” the words “Justices of the Court,” d'C • “to be paid to the said Justices,” &e. are to be rejected as unmeaning and the bond is payable to I.

Where a Court has no power to appoint a guardian but does appoint him, and he gives bond with sureties and lakes possession of the ©state of the ward, it is not competent for any of tho obligors in such bond to object to its validity on the ground of want of power in tho Court to make the appointment.

The cases of *Fita*v. *Green,*3 Dev. 281, *Vanhook*v. *Barnet,*4 Dev. 268, -and *Richardson*v. *Wall,*1 Ire. 297, cited and approved.

Appeal from the Superior Court of Law of Orange County, at tbe Fall Term, 184S, his Honor Judge Cald* well presiding.

This was an action of debt, upon the following bond :

STATE OF NORTH CAROLINA,

Orange County.

Know alt, nen by these presents, That we, Nathaniel King, William Barbee and David B. Alsobrook, all of Orange County, in the State aforesaid, are held and firmly-bound unto James Iredell. Esq., Governor, &c., Justices of the Court of Pleas and Quarter Sessions for the Comity of Orange, in tbe sum of ten thousand dollars to be paid to the said Justices or the survivors of them, their execu* *251tors or administrators, in trust for the benefit of the child hereafter named, committed to the tuition of the said Nathaniel King ; to which payment well and truly to be' made, we bind ourselves, and each of us, each and every one of our heirs, executors or administrators, jointly and severally, firmly by these presents. Sealed with our seals and dated this 30th day of May, in the year of our Lord, 182S.

Thb Condition of the above obligation is such, that whereas the above bounden Nathaniel King is constituted and appointed guardian to Elizabeth Fann ; now if the said Nathaniel King shall faithfully execute his said guardianship, and particularly shall well and truly secure and improve all the estate of the said Elizabeth Fann that shall come into his possession for the benefit of the said Elizabeth Fann, and shall render a plain and true account of his said guardianship, on oath, before the Jus* tices of our said Court, in all cases as required by Act of Assembly, and deliver up, pay to or possess the said Elizabeth Fann of all such estate or estates, as she ought to be possessed of, when lawfully required by said Elizabeth Fann, or to such other persons as shall be lawfully empowered or authorized to receive the same, and the profits arising therefrom, then this obligation to be void; otherwise to remain in full force and virtue.

(Signed and sealed by)

N. J. KING,

W. BARBEE,

D. B. ALSOBROOK.

The breach assigned in the declaration was that the said N. King had failed to deliver and pay over to the said E. Fann a large amount of property which he had received as her property. Pleas, general issue, conditions performed and not broken.

In support of the action it was proved, that the defendant had signed and sealed the bond in suit, and had *252banded it to the Clerk of Orange County Court as bis bond, and that it had remained among the records of that office until this suit was brought. It was further shewn, by a copy of the record from Orange County Court, that at May term of that Court 1824, a jury purporting to act upon a writ of lunacy, found Elizabeth Fann to be in a weak and debilitated state of mind, and that it was unsafe and injurious to those interested in the property, subject to her control, that it should remain longer in her possession : that upon that finding one John Wilson was appointed her guardian, and upon his death Nathaniel J. King was appointed her guardian at May term 1S28, and entered into the bond now sued upon. It was further shewn that Elizabeth Fann was dead and that the relator was her administrator. And the report and account of the commissioner to whom the matter had been referred "was offered in evidence to shew the amount of the plaintiff’s damages.

On the part of the defendant, it yvas shewn that no petition or writ of lunacy could be found among the records of the County Court in the matter of Elizabeth Fann.

And it was contended by the defendant that this action could not be sustained : *First,*because there was no delivery of the bond : *Secondly,*because the bond was void for uncertainty and repugnance : and *thirdly,*because tbe verdict of the jury did not find Elizabeth Fann to be either an idiot or a lunatic, and therefore that the appointment of the guardian by tbe Court was a nullity and this bond given by the defendant was void. And his Honor was requested so to charge the jury.

But it was agreed by the counsel of the parties, that his Honor should reserve the questions of law and that the case should be submitted to the jury, and if they should find for the plaintiff, and his Honor, upon consideration should be for the defendant upon the questions re*253served, then the verdict should be set aside and a non suit entered.

The jury found for the plaintiff; and on another day of the term his Honor delivered his opinion adverse to the plaintiff’s right of recovery. Whereupon the verdict was set aside and judgment of non-suit entered, from which the plaintiff appealed to the Supreme Court.

*Norwood,*for the plaintiff.

*Waddell*and *J. 11. Bryan,*for the defendant.

Pbabson, J.

Such a construction should be given to every deed, as to give it effect, and carry out the intention of the parties, “ *Ut res magis valeat quam percat,”*is a well ruled maxim of law, formed upon good sense and calculated to promote the ends of justice.

It is clear tha£ King was called to take possession of a large estate belonging to Mrs. Fann, in consequence of his entering into the bond now sued on, and that the defendant as one of his sureties, undertook, that he would pay over the estate to such persons as might be lawfully authorised to receive it. King did accordingly take possession of the estate, and has failed to account for it to the representative of Mrs. Fann. It would be a matter of regret, if, from any defect in the bond or any legal objection, the defendant could evade the performance of an undertaking, deliberately entered into by him, and throw the loss upon Mrs. Fann’s estate.

The defendant has put himself upon his legal rights, as he was at liberty to do, and the question is, whether he is in law bound to make good the loss.

The counsel for the plaintiff properly admitted, that the paper could not be sustained as an official bond, and declared upon it as a common law bond.

It was proved, that the bond was signed and sealed and delivered to the clerk of Orange County Court by the *254defendant. We think this was a sufficient delivery. A stranger may accept the delivery of the bond and it is good, unless the obligee refuses to ratify the delivery, but in the absence of proof to the contrary such ratification is presumed.

The second objection is, that the bond is void for uncertainty and repugnance. *Utile per inutile non vitiatur,*is a maxim of law, by which all useless and unmeaning words are to be rejected, provided enough remain to make the deed sensible. The words, “justices of the Court” &c, “to be paid to the said justices or the survivors of them” &c. are useless and unmeaning, and convey node-finite idea, and are, therefore, to be rejected, leaving an obligation to pay James Iredell the sum of ten thousand dollars. *Fitz v. Green,*3 Dev. 291, *Vanhook*v. *Barnett,*4 Dev. 203, *Richardson*v. *Wall,*1 Ired. 297, are cases in point and fully sustain this position.

The third objection is, that, as the verdict of the jury did not find Elizabeth Fann either a “lunatic” or an idiot,” the appointment of a guardian by the Court was a nullity, and this bond given by the defendant, was void.

It is true, the Court had not power to appoint King the guardian of Mrs. Fann and authorise him to take her estate into his possession, but the defendant will not be heard to make this objection; he concurred in the act; his bond solemnly asserts that. King was appointed guardian and had power to take the estate into possession, and after King has taken the estate into possession and wasted it, it is not for him to say, that it was unlawful, and, therefore, that he is not bound by his undertaking deliberately entered into. Upon that agreed state of facts, “ his mouth is shut” and he shall not be allowed to take advantage of his own *wrong.*

The *technical*rules of the doctrine of estoppels are said to be odious, but there is no rule better calculated to do justice, and exclude dishonesty, than that by which, when *255one solemnly admits a fact either by his own words or acts, and it is acted upon, he shall not escape from liability. by being heard to gain spy it. It violates all idea of justice for the defendant to say, that it was against the policy of the law for him to give the bond, and thereby enable King to invade the rights of Mi-s. Fann, and therefore, that he should not be bound to answer for the acts of King as he had undertaken to do. Mrs. Fann might have complained, but he has no right to do so. The illegal appointment was not the consideration, nor was the bond the inducement for making the appointment: it was a collateral security taken to insure a faithful discharge of *duties incident*to the appointment. The case of the *United States*v. *Manin*& others, 2 Brockinbrough 115, is directly in point. In that case, Manin had been appointed to an office by the *Secretary of War,*and had given bond, with the other defendants as sureties ; it was admitted, that the appointment was void, and was against the law and its policy, as the appointment ought to have been made by the President, by and with the advice and consent of the Senate ; but it was held that the defendants could not avail themselves of the illegality of the appointment, and were liable for all moneys received and not accounted for. In delivering the opinion, Chief Justice Maeshall uses this language, “the appointment is illegal, but does that render the bond void *1*It was given in the confidence that James Manin was legally appointed to office. Does the illegality of the appointment absolve the person appointed from the legal and moral obligation of accounting for public money, which has been placed in his hands in consequence of such appointment ? If the policy of the law condemns such appointments, does it also condemn the payment of moneys received under them *1”*

The judgment below must be reversed, and a judg*256ment entered for the plaintiff upon the verdict, according to the agreement of the parties-

Per Curiam. Judgment reversed and Judgment for the plaintiff.