#### TENCH C. COXE, Sr., Guardian v. WHITMIRE MOTOR SALES COMPANY.

(Filed 23 December, 1925.)

Guardian, and Ward — Leases—Landlord and Tenant — Fraud—False Warranty — Damages—Statutes.

Where a lease by tbe guardian of bis ward’s lands was not publicly made, C. S., 2171, nor approved by tbe clerk of tbe Superior Court, C. S., 2172, tbe lessee may not bold tbe ward’s estate liable for tbe false representations of tbe guardian’s agent as to tbe value of tbe leased property for tbe lessee’s purposes, nor for bis false warranty thereof. Tbe personal liability of tbe one acting as guardian remarked upon by Stacy, C. J.

Appeal by plaintiff from *Lane, J.-,*at September Term, 1925, of BUNCOMBE.

Civil action by plaintiff, landlord, to recover rent from defendant, bis tenant, and damages for failure to keep demised premises in repair, as per stipulation in lease.

On 9 February, 1923, tbe plaintiff, as guardian for M. C. and E. R. Coxe, minors, leased to tbe defendant tbe premises described as 99, 101 and 103 Patton Avenue, in tbe city of Asheville, for a term of two years, beginning on 1 April, 1923, and ending on 31 March, 1925, at a yearly rental of $3,600, payable in monthly installments of $300 each, said premises to be used for motor sales, repair and paint shop.

*839The defendant took possession of said premises on 1 April, 1923, and ocenpied the same until 10 December, 1924, at which time he vacated said premises without paying for the last month’s rent. This action was instituted on 24 December, 1924, to recover the rent then in arrears and damages for failure to keep said premises in repair, as defendant had agreed to do.

In his answer, the defendant sets up a counterclaim for damages resulting from loss of business, etc., occasioned by the alleged false and fraudulent representations made by plaintiff’s agent as to the condition • and availability of said premises for use in the prosecution of defendant’s business.

Upon the issues thus joined, the jury returned the following verdict:

“1. Was defendant induced to lease the premises in controversy upon the representation that they were in a safe and tenantable condition for use by defendant, as alleged in the answer? Answer: Yes.

“2. If so, was such representation false, as alleged in the answer? Answer: Yes.

“3. If so, what damages is defendant entitled to recover of plaintiff on account of said false representation? Answer: $1,191.

“4. In what amount, if any, is defendant indebted to plaintiff? Answer: $300.”

From a judgment entered on this verdict adjudging that the defendant “have and recover of the plaintiff, Tench C. Coxe, Sr., as guardian for M. C. Coxe and F. E. Coxe, minors, the sum of eight hundred ninety-one ($891) dollars and the costs of this action to be taxed by the clerk,” the plaintiff appeals, assigning errors.

*Leo, Ford & Coxe for plaintiff.*

*Mark W. Brown for defendant.*

Stacy, C. J.,

after stating the case: It is apparent from the face of the record that the judgment entered in this case cannot be sustained. The suit is brought by plaintiff, in his capacity as guardian and on behalf of his wards or their estate. Likewise, the cross-action is directed against the plaintiff in the capacity in which he sues. The defendant’s counterclaim is bottomed on an allegation of deceit, or fraud in the treaty inducing the execution of the lease. *Furst v. Merritt, ante,*397, 130 S. E., 40. He has been allowed to recover for false warranty. The renting was not made publicly (C. S., 2171); nor was the lease approved by the clerk of the Superior Court. C. S., 2172.

Conceding that ■ an action for deceit includes false warranty, such as defendant has recovered for here, we are aware of no statute or de-*840cisión, in tbis State authorizing a judgment to be taken and entered against a ward or bis estate for tbe false warranty of tbe agent of a guardian in representing tbe ward’s property to be suitable for certain purposes, sucb as was done by tbe plaintiff’s agent, according to defendant’s allegation, 'in executing tbe lease now before tbe Court. Tbe law would seem to be otherwise. *LeRoy v. Jacobosky,*136 N. C., 443; *Female Academy v. Phillips,*68 N. C., 491; *Smith v. Kron,*96 N. C., 397.

Tbe question of tbe personal liability of tbe plaintiff is not presented on tbe present record. But for a statement of tbe general rule, see *Jones v. Johnson,*178 Pac. (Okla.), 984, 21 A. L. R., 903; 12 R. C. L., 1126 *et seq.*

Tbe verdict and judgment will be vacated and tbe cause remanded, to tbe end that further proceedings may be bad as tbe law directs and as tbe rights of the parties require.

New trial.