The following opinion was filed March 14, 1882:
LyoN, J.
I. The questions as to who are the proper parties plaintiff in the action, and as to the sufficiency of the complaint, are raised by the demurrer, and the appeal presents them for determination. Armstrong v. Gibson, 31 Wis., 61; Tronson v. Union Lumbering Co., 38 Wis., 202; R. S., 799, sec. 3070.
[44]*441. It is a general rule of law that an action qoncem-ing the estate of a minor must be by or against the minor, who, under onr statute (R. S., 716, sec. 2613), must be represented by a guardian ad litem. Rut to this rule there are many exceptions. 3 Wait’s Actions & Defenses, 573. We understand one of these exceptions is where the action is upon an express contract made by the guardian for the benefit of the ward. Such an action may, it seems, be brought by or against the guardian personally. Thomas v. Bennett, 56 Barb., 197; Stevenson v. Bruce, 10 Ind., 397.
Some of the cases go upon, the principle that the guardian in such a case is the trustee of an express trust, and may sue without joining his ward with him. Whether this is the true reason of the rule it is not necessary here to determine, as the rule may be upheld on other grounds.
In the entitling of the summons and complaint in this action the plaintiffs are named and described thus: “ Antoinette MeKinney, late widow of Robert, and heir-at-law of Eldora Graham, deceased; and Esther E. Graham, heir-at-law of Robert Graham, deceased, by her guardian, William Brind-ley .” In form, the minor, Esther E., is here named as a plaintiff, and her guardian is not; but in the body of the complaint Mr. Brindley is referred to as a plaintiff. For example, it is alleged therein that “the plaintiff William Brindley was duly licensed ” to sell the land, etc. A careful examination has satisfied us that it is the complaint of Mrs. MeKinney and Mr. Brindley, and not of the former and Esther E.,.notwithstanding the form in which it is entitled. Looking at substance rather than form, we must hold that the guardian, and not the minor, is one- of the plaintiffs; and, in that respect, there is no defect of parties plaintiff.
It is further claimed that the husband of Mrs. MeKinney should have been a party to the action, because he signed a writing at the foot of the contract between his wife and the defendants, as follows: “ I hereby join in the above contract [45]*45with Antoinette MeKvrmey, my wife, and bind myself to do and perform all the acts necessary to convey all my interest •as husband in said estate.” Presumably the interest of Mrs. MeKmney in the land described in the contract was her separate estate. There is nothing in the pleadings or proofs tending to show that her husband had any interest whatever in it. Manifestly, under these circumstances, he is not a necessary party to the action.
2. The complaint fails to allege that the agreement of the special guardian for the sale and conveyance of his ward’s interest in the land to the defendants was confirmed by the court. Until such confirmation the special guardian could not convey (R. S. 1858, ch. 96, sec. 10), and of course the action could not be maintained. Eor this defect in the complaint the demurrer thereto should have been sustained, on the ground that the complaint fails to state a cause of action.
But the defendants introduced in evidence the whole record of the proceedings in the circuit court upon the application for license to sell the land, and those proceedings show that the guardian’s agreement with the defendants was duly reported to and confirmed by the court. This proof supplied the omission in the complaint. Under a familiar rule often acted upon by this court, the complaint may be amended, as well after as before judgment, to correspond with the proofs, or the omission may be disregarded. Flanders v. Cottrell, 36 Wis., 564; Matthews v. Baraboo, 39 Wis., 674; Cody v. Bemis, 40 Wis., 666; Weston v. McMillan, 42 Wis., 567; Russell v. Loomis, 43 Wis., 545; Aschermann v. Brewing Co., 45 Wis., 262.
It follows that although the demurrer was erroneously overruled as to one ground thereof, the judgment should not be reversed for that reason, because the proofs introduced by the defendants supplied the defect in the complaint, and thereupon the error ceased to prejudice or injure them.
[46]*46II. Two irregularities in the proceeding to obtain license for the guardian to sell the interest of the minor in the land in question are alleged, and the learned counsel for the defendants claim that they vitiate the whole proceeding.
1. The petitioner for such license is the mother of the minor. It is urged that the statute does not authorize the court to proceed on her petition. The statute which íuled the proceeding (B. S. 1858, ch. 96, sec. 4), is as follows: “ Any infant seized of any real estate, or entitled for any term for years in any lands, may, by his next friend, or by his guardian, apply to the circuit court for the sale or disposition of his property in the manner hereinafter directed.” The corresponding section in the present revision (section 3504), provides that application for the license may be made by the general guai’dian of the infant, or any relative or other person, in behalf of the infant. In their note to this section the revisers say that “ its directions are in accordance with- the practice which has heretofore obtained in such cases.” We think the term “next friend,” as used in section 4, is broad enough to include the mother of the minor. It is, or rather was, by the common law the legal designation of the person by whom an infant brought and prosecuted an action either at law or in equity. When these proceedings were had such person was, and now is, designated a guardian ad litem. B. S. 1858, ch. 122, secs. 16, II; B. S., secs. 2613, 2614. There was no statutory pi-ovision for the appointment of a next friend in a proceeding in the circuit court to obtain license to sell the land of an infant, and there is none now.
The statute evidently used the term, not as requiring the petitioner for such license to be one who had been specially appointed by some court to represent the infant, but rather to include any person, particularly a near relative of the infant, who should see fit to make the application. This was the view of the revisers, and was undoubtedly the view ac-[47]*47eeptecl and acted upon by the bar and courts of the state before the late revision.
"We conclude that the petition was sufficient to set the proceeding in motion.
2. Section 6, ch. 96, E. S. 1858, required the special guardian to give a bond to the infant “ conditioned for the faithful performance of the trust reposed, for paying over, investing and accounting for all moneys which shall be received by such guardians, according to the order of any court having authority to give directions in the premises, and for the observance of the orders and directions of the court in relation to the said trust.” The special guardian gave a bond conditioned as follows: “Now, if the said William Brind-ley
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The following opinion was filed March 14, 1882:
LyoN, J.
I. The questions as to who are the proper parties plaintiff in the action, and as to the sufficiency of the complaint, are raised by the demurrer, and the appeal presents them for determination. Armstrong v. Gibson, 31 Wis., 61; Tronson v. Union Lumbering Co., 38 Wis., 202; R. S., 799, sec. 3070.
[44]*441. It is a general rule of law that an action qoncem-ing the estate of a minor must be by or against the minor, who, under onr statute (R. S., 716, sec. 2613), must be represented by a guardian ad litem. Rut to this rule there are many exceptions. 3 Wait’s Actions & Defenses, 573. We understand one of these exceptions is where the action is upon an express contract made by the guardian for the benefit of the ward. Such an action may, it seems, be brought by or against the guardian personally. Thomas v. Bennett, 56 Barb., 197; Stevenson v. Bruce, 10 Ind., 397.
Some of the cases go upon, the principle that the guardian in such a case is the trustee of an express trust, and may sue without joining his ward with him. Whether this is the true reason of the rule it is not necessary here to determine, as the rule may be upheld on other grounds.
In the entitling of the summons and complaint in this action the plaintiffs are named and described thus: “ Antoinette MeKinney, late widow of Robert, and heir-at-law of Eldora Graham, deceased; and Esther E. Graham, heir-at-law of Robert Graham, deceased, by her guardian, William Brind-ley .” In form, the minor, Esther E., is here named as a plaintiff, and her guardian is not; but in the body of the complaint Mr. Brindley is referred to as a plaintiff. For example, it is alleged therein that “the plaintiff William Brindley was duly licensed ” to sell the land, etc. A careful examination has satisfied us that it is the complaint of Mrs. MeKinney and Mr. Brindley, and not of the former and Esther E.,.notwithstanding the form in which it is entitled. Looking at substance rather than form, we must hold that the guardian, and not the minor, is one- of the plaintiffs; and, in that respect, there is no defect of parties plaintiff.
It is further claimed that the husband of Mrs. MeKinney should have been a party to the action, because he signed a writing at the foot of the contract between his wife and the defendants, as follows: “ I hereby join in the above contract [45]*45with Antoinette MeKvrmey, my wife, and bind myself to do and perform all the acts necessary to convey all my interest •as husband in said estate.” Presumably the interest of Mrs. MeKmney in the land described in the contract was her separate estate. There is nothing in the pleadings or proofs tending to show that her husband had any interest whatever in it. Manifestly, under these circumstances, he is not a necessary party to the action.
2. The complaint fails to allege that the agreement of the special guardian for the sale and conveyance of his ward’s interest in the land to the defendants was confirmed by the court. Until such confirmation the special guardian could not convey (R. S. 1858, ch. 96, sec. 10), and of course the action could not be maintained. Eor this defect in the complaint the demurrer thereto should have been sustained, on the ground that the complaint fails to state a cause of action.
But the defendants introduced in evidence the whole record of the proceedings in the circuit court upon the application for license to sell the land, and those proceedings show that the guardian’s agreement with the defendants was duly reported to and confirmed by the court. This proof supplied the omission in the complaint. Under a familiar rule often acted upon by this court, the complaint may be amended, as well after as before judgment, to correspond with the proofs, or the omission may be disregarded. Flanders v. Cottrell, 36 Wis., 564; Matthews v. Baraboo, 39 Wis., 674; Cody v. Bemis, 40 Wis., 666; Weston v. McMillan, 42 Wis., 567; Russell v. Loomis, 43 Wis., 545; Aschermann v. Brewing Co., 45 Wis., 262.
It follows that although the demurrer was erroneously overruled as to one ground thereof, the judgment should not be reversed for that reason, because the proofs introduced by the defendants supplied the defect in the complaint, and thereupon the error ceased to prejudice or injure them.
[46]*46II. Two irregularities in the proceeding to obtain license for the guardian to sell the interest of the minor in the land in question are alleged, and the learned counsel for the defendants claim that they vitiate the whole proceeding.
1. The petitioner for such license is the mother of the minor. It is urged that the statute does not authorize the court to proceed on her petition. The statute which íuled the proceeding (B. S. 1858, ch. 96, sec. 4), is as follows: “ Any infant seized of any real estate, or entitled for any term for years in any lands, may, by his next friend, or by his guardian, apply to the circuit court for the sale or disposition of his property in the manner hereinafter directed.” The corresponding section in the present revision (section 3504), provides that application for the license may be made by the general guai’dian of the infant, or any relative or other person, in behalf of the infant. In their note to this section the revisers say that “ its directions are in accordance with- the practice which has heretofore obtained in such cases.” We think the term “next friend,” as used in section 4, is broad enough to include the mother of the minor. It is, or rather was, by the common law the legal designation of the person by whom an infant brought and prosecuted an action either at law or in equity. When these proceedings were had such person was, and now is, designated a guardian ad litem. B. S. 1858, ch. 122, secs. 16, II; B. S., secs. 2613, 2614. There was no statutory pi-ovision for the appointment of a next friend in a proceeding in the circuit court to obtain license to sell the land of an infant, and there is none now.
The statute evidently used the term, not as requiring the petitioner for such license to be one who had been specially appointed by some court to represent the infant, but rather to include any person, particularly a near relative of the infant, who should see fit to make the application. This was the view of the revisers, and was undoubtedly the view ac-[47]*47eeptecl and acted upon by the bar and courts of the state before the late revision.
"We conclude that the petition was sufficient to set the proceeding in motion.
2. Section 6, ch. 96, E. S. 1858, required the special guardian to give a bond to the infant “ conditioned for the faithful performance of the trust reposed, for paying over, investing and accounting for all moneys which shall be received by such guardians, according to the order of any court having authority to give directions in the premises, and for the observance of the orders and directions of the court in relation to the said trust.” The special guardian gave a bond conditioned as follows: “Now, if the said William Brind-ley shall sell the said estate of said minor, and a true report make of the said sale, and the amount received therefor, and shall faithfully keep the proceeds of such sale, and loan the same at interest, or invest the same as shall be deemed best for the interest of said minor, and not squander any of the proceeds of such sale, then this obligation to be void, otherwise to be and remain in full force, virtue and effect.”
If it was the intention of the person who drew that bond to ignore the statute and banish from the instrument everything the statute required should be inserted in it, his success in the accomplishment of his purpose challenges admiration. If the jurisdiction of the court to grant the license to sell depended upon the giving of the bond required by the statute, the license could not be upheld. But we do not think the jurisdiction of the court so depends. The statute does not in terms, or by. necessary implication, enact that the failure to give a bond in the form prescribed shall invalidate the license, or that the giving of it is a condition precedent to granting the license. The fair implication of the statute is the reverse of that, for it provided that “ all sales, leases and dispositions and conveyances made in good faith by the guardian, in pursuance of such orders, when so confirmed, shall be valid and [48]*48effectual, as if made by such infant when of full age.” R. S. 1858, cb, 96, sec. 12. We suppose the bond given is valid as a voluntary bond, and may be enforced by action in the event of a breach of any of its conditions. This proposition, however, is not in the case.
Our conclusion is, that the license to Brindley, the special guardian, to sell the land of his ward is valid.
III. The contract between the plaintiff Mrs. McKinney and the defendants, for the sale and purchase of the land, called for the delivery to them on or before April 1, 1869, of the contract of the infant by her guardian duly authorized to join in the conveyance. The contract was not so delivered .until about March 10, 18Yl. This breach of the covenant does not help the case of the defendants, for they accepted the contract without objection, have since made two payments of purchase money, and presumably still retain possession of the land. They have thus clearly waived any ¡right to declare the contract forfeited for such breach.
IY. The testimony was taken before a referee, who reported it to the court. On the hearing in court the judge permitted two witnesses, called by the plaintiffs, to give testimony in the case. Their testimony is material. The defendants’ •counsel objected to the examination of these witnesses, and -applied for a continuance to enable them to produce testimony to meet the testimony so received. But no affidavit -of surprise was submitted, and no showing was made that the defendants could probably controvert or weaken the force ■of such additional testimony. The motion was for a continuance “ to enable the defendants to be present and produce ■testimony to meet and explain the oral testimony now introduced by the plaintiffs.” Clearly it was in the discretion of the court to admit the additional testimony, and the defendants showed no sufficient cause for a continuance.
Y. The foregoing remarks dispose of all the questions in ■the case which it is deemed necessary to notice, save one, [49]*49which will now be considered. The question chiefly litigated on the trial related to a payment of $300 on the contract, alleged by the defendants and denied by the plaintiffs'. It was admitted that $300 was paid at the execution of the contract. The contention of the plaintiffs was that the same was paid at the date of the contract — October 7, 1868,— and indorsed thereon as paid on that day; that the date of the indorsement has been since changed by some person, without their consent or knowledge, to October 17th; and that no payment was made at the latter date. The contention of the defendants is that the first $300 paid was not indorsed upon the contract, and that at the date last aforesaid they paid thereon an additional $300. It will serve no useful purpose to state the testimony on this question. It is in direct conflict, and so nearly balanced that we are unable to say that there is a clear preponderance against the finding of the court. Had the court found the other way we should probably be compelled to say the same thing. The finding on this litigated question was for the plaintiffs, and, under well settled rules, we cannot disturb it.
By the Gowrt.— The judgment of the circuit court is affirmed.