#### HENRIETTA HOWARD *vs.*ROBERT THOMPSON.

A guardian of a lunatic may, by order 'of the County Court, rightfully sell the personal property of his ward for the payment of his debts, provided there be no fraud in the proceeding.

The cases of *Harris*v. *Richardson,*4 Dev. 279, and of *Leary*v. *Fletcher,*I Ired. 259, cited and approved.

Appeal from the Superior Court of Law of Orange Countj, at a Special Term in December 1847, his Honor Judge Battle presiding.

This was an action of detinue for seven slaves, to which the defendant pleaded the general issue and statute of limitations. It was tried at the Special Term of Orange County in December last, when the plaintiff proved, that she was entitled to the slaves in controversy under the will of her father; that they were in the possession of the defendant and had been demanded of him, before the commencement of the suit. She then produced the records of the County Court of Orange, at November Term, 1845, showing that she had been regularly declared a lunatic, and that one Thomas D. Oldham had been appointed her guardian. The defendant claimed the slaves, under a sale made by one Stephen Glass, as the guardian of the plaintiff, in November 1827. He then produced the records of the County Court of Orange, at August term, 1826, showing that the plaintiff was then declared a lunatic and the said Glass appointed her guardian, and he also produced the records of August tei’m, 1827, upon which appeared the following order :

“ Ordered, that Stephen Glass, Guardian &^c. have leave to sell Patience and her three children, $he pro*368perty of Ritta Howard, bis ward, for the purpose of paying debts.”

He then introduced witnesses, to show that Glass, the guardian, sold the slaves mentioned in the order, at public sale in November 1827, when one Richard Howard became the purchaser, and afterwards sold them to him: and that he had kept them and their increase ever since, claiming them as his own. The fairness of the sale made by the guardian was attempted to be impeached by the plaintiff, and testimony was introduced for that purpose, but it is unnecessary to state it, as the ease was decided upon another ground. The defendant contended that he acquired a good title to the slaves, under the sale made by the plaintiff’s guardian, Glass, to Richard Howard and his purchase from Howard ; but that, if his title had been originally defective, it was made good by so many years of adverse possession. He also objected that the action could not be sustained in the name of the plaintiff alone, without joining her guardian or some person as next friend.

For the plaintiff it was insisted, that the action was properly brought in her name, and that, if it were not so, the objection could not be taken upon the trial after a plea in bar ; that the defendant had not acquired any title under his purchase: 1st. Because the County Court had no power to make an order for the sale of the slaves. 2nd. That if it had, it was a special authority, which must be strictly pursued, by the Court’s ascertaining the debts for which the sale was to be made, which it was contended, had not been done in this case. The Court charged the jury that the County Court had no power to make the order in question, because it had not pursued the special authority conferred upon it, and that the defendant had therefore acquired no title to the slaves under his purchase from the vendee of the guardian ; that the statute of limitations had no operation, because *369the plaintiff was a lunatic during the whole time of the defendant’s possession, and that the action could be sustained in the name of the plaintiff alone. Under this charge the plaintiff had a verdict and judgment, and the defendant appealed.

No counsel for the defendant.

*Waddell*and *Norwood,*for the plaintiff.

Battle, J.

When this ease was on trial before me while presiding in the Court below, the main objection to the title set up by the defendant, under the sale made by the plaintiff’s first guardian, Glass, was that the authority conferred upon the County Courts by the acts of 1784 and 1801 (1 *Rev. Stat. ch.*57, *sec.*1 and 2) was a special one, which must be strictly pursued ; and that the County Court of Orange, in making the order in question, had exceeded the authority, with which it was invested ; and that therefore the order and all the proceedings under it were void. In support of this position, the counsel for the plaintiff cited and l’elied upon, the case of *Leary*v. *Fletcher,*1 Ired. Rep. 259, in which it was held that the County Court, in proceeding under the act of 1789 (1 *Rev. Stat.ch. 63, sec.*11) authorising an order to issue to a guardian empowering him to sell the property of his ward, for payment of the debts of the ward, must first ascertain that there are debts due by the ward, which render the sale of the property expedient; and that the Court must also select the part or parts of his property, which can be disposed of, with least injury to the ward, and that, therefore, an order in the following words: “ Ordered that A. *W.*the guardian, have leave to sell as much of the lands of S. M. deceased, as will satisfy the debts against said deceased’s estate” is unauthorised and void, and a purchaser of the land under a sale, made by the guardian in pursuance of such order,acquires no title. The difference between the general power of the County Courts, acting *370
      *quoad hoc*as Courts of Chancery, by virtue of the autho-rityconferred upon them by the General Assembly,in order* ing the sale of thereai estates of wards by their guardians, and their power in ordering the sale of *personal*property was not distincly presented to the Court in the reply of the defendant’s counsel, nor was the case, *Harris*v. *Richardson,*4 Dev. Rep. 279, brought to its notice. Upon see* ing the latter case, and considering the principles, upon which it was decided, I am satisfied that I eired in my charge to the jury upon the question now under consideration.

The facts of that case were that certain slaves had been sold by the guardian of the plaintiff, Susan Harris, under an order of the County Court, made upon his petition, which set forth that his ward had no other property, than the said slaves, and that they were all expensive to her. The defendant claimed under a sale made by the guardian, and the plaintiff obtained a verdict and judgment in the Court below. But this Court reversed the judgment and granted a new trial, holding that a guardian appointed by the Court of Chancery might, by order of the Court, rightfully^ sell *the personal*property of his ward; and that the Act of 1702, 1 Rev. Stat. ch. 54, confers the same power on the County Courts, so that a guardian, appointed by the latter, might, under a similar order, also sell the personal estate of his ward. The Act of 1801, above referred to, gives to the County Courts the power to appoint guardians of lunatics and idiots, and invests the guardians so appointed with “ the same powers to ail intents, constructions and purposes” as have been conferred upon guardians of orphans-, appointed by the County Courts by virtue of the Act of 1762. It follows from this, that the case of *Harris*v. Richardson, is a direct authority in favor of the order and sale, under which the defendant claims ; and we hold, that, if the sale was made fairly and in good faith by his vendor, he acquired by it a good title to the slaves now sued- for. *371We think it proper, however, to repeat the remarks, made *by*the Court in the case just referred to, that such sales 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 combinations between him and the ostensible purchasers so obvious, that the vigilance of Courts and jurors should be extended in detecting any fraud, which may infect the proceeding.” The judgment must be reversed and a *venire de novo*awarded.

Per Curiam. Judgment reversed and a *venire de novo.*