Pond v. Curtiss

7 Wend. 45

• Court: New York Supreme Court
• Decided: May 15, 1831
• Status: Published

Opinion

By the Court,

Sutherland, J.

The principal question arising upon the demurrer is, whether the suit can be maintained in the name of the guardian. The defendant contends that it-should have been brought in the name of the ward. The guardian had competent authority to make the lease He may lease the real estate of his ward during the minority, but no longer. Bacon’s Abr. Guardian, 9. 2 Willes, 129, 135. He cannot sell it without the previous order of the court of chancery, 7 Johns. Ch. ft. 154. 2 Kent’s Comm. 187. Among the very numerous cases cited by the counsel for the defendant, I find none which has any direct bearing upon the question, whether a guardian, after his ward has attained his majority, can bring an action in his own name, to enforce an express contract made by him for the benefit of his ward during his minority. Where the suit is brought with the approbation of the ward for his benefit, .it is a question of form rather than of substance and in all cases the court of chancery will take care that the interests of the ward are protected. There is nothing in this case to show that this suit is not actually brought by the ward in the name of his guardian who executed the lease.

As a general rule, the action upon a sealed instrument must be in the name of the parties to it, although the beneficial interest may be in another. Thus, where a bond is made to A. for the benefit of B., it has been held that B. can neither sue upon it nor release the demand, he not being a party to it. Offly v. Waide, 1 Leon. 235. 3 Bos. & Pul. 149, n. a. 1 Chitty’s Pl. 4, 5. There are exceptions to this rule, both at common, law and under various statutes. Thus, covenants running with land may be prosecuted both by and against the assignee. Comyn’s Dig. tit. Covenant, B. 3, C. 3 and cases there cited. Bail bonds are made assignable by statute, and the assignee may sue as such in his own name ; so also the assignee of an insolvent debtor. Bonds taken to certain public officers, who are considered as quasi corporations, may be sued in the names of their successors in office. But those cases are all obviously distinguishable from this, and I perceive no objection, in principle, to allowing the ward, in a case like this, to enforce the covenant made for his benefit, in the name of his guardian. It is to be intended that the suit is brought for the benefit of the ward, and with his approbation, until the contrary is shown.

The plea supplies all the defects of the declaration, in omitting to state how the plaintiff is guardian. The appointment and all the proceedings are set forth at length in the plea.

Judgment for plaintiff on demurrer.