Cole, J.
This is an action to compel contribution bj one surety to another for money paid on a bond given by a guardian on the sale of real estate belonging to his ward. The bond was joint and several, and was conditioned that if tbe guardian “ do and shall justly and truly account for all the proceeds of the sale of said real estate and dispose of the same according to law, and perform all orders and decrees of the county court by him to be performed in the premises, then the obligation to be void.”
On the trial, the plaintiff offered in evidence a certified copy of an order on accounting' before the county court, which showed that the guardian had been cited to appear before that court and render an account of his guardianship; that the guardian and sureties did appear, and, after hearing the allegations and proofs of the parties, the court adjudged that there was due from the guardian to tbe ward the sum of $978.30, and ordered the amount to be paid within sixty days after the service of a copy of the order upon the guardian and sureties. The money not being paid, an action was subsequently commenced on the bond against the guardian and this plaintiff, in which judgment was rendered against them for $1,009.48 damages, and $57.24 costs. The plaintiff paid this judgment, and has sued and recovered a judgment against the cosurety for one-half of the amount thereof; also the sum of $12.50, which was one-half the amount paid the attorney who appeared for the sureties in the county court on the accounting. The principal question in the case arises upon the rulings of the court in excluding certain testimony offered on the part of the defendant. The defendant offered to prove that tbe guardian sold the land to the plaintiff at the sale for $1,300, receiving in payment a span of horses at $500. twenty acres of land at [377] $500, and $300 in money; that previous to the sale the plaintiff: had sold the guardian the horses, taking a note and chattel mortgage on the horses, with the understanding and agreement that he was to bid off the land and deliver the guardian the note and mortgage back in part payment for the land; that this arrangement was entered into'with intent to cheat and defraud the ward; that the sale between the plaintiff and guardian was fraudulent, for the reason that the ward’s land was sold for about half its value, and a greater price given for the horses and the land received in exchange than the property wa< worth. This, in substance, was the offer. The testimony was objected to and ruled out, on the ground that these matters could not be inquired into in this action ; that the proceedings in the county court on the accounting, and the judgment in the circuit court, were conclusive as to the extent of liability on the part of the sureties. The question is, Was this.evidence admissible? It is not obvious upon what principle the facts offered to be proven would constitute a defense to this action for contribution. They would only tend to show that a fraud was committed upon the ward, and that her property had been sacrificed by the arrangement entered into between the plaintiff and guardian; but they would not show, nor have any tendency to show, that there had been no breach of the bond, or that the sureties were not justly bound to pay the amount which was found due the ward on the accounting. The counsel for the defendant concedes that the plaintiff was liable to the ward for the amount found due from her guardian, and that this amount has been paid by him; but he says it does not follow from this that his cosurety is liable to him for contribution. Why not ? Suppose it were shown that the guardian was guilty of a gross breach of trust in dealing with the estate of his ward, and .that the sureties, instead of being held responsible to the ward for $1,000, ought justly.to pay her $2,000 ; how would these facts tend to exonerate the defendant from the payment of his proportion of the $1,000 ? If the [378] ward sees fit to acquiesce in tbe fraud of her guardian, and does not choose to bold the sureties to the full measure of their liability, why should the defendant complain, so long as he is only called upon to pay his share of the debt actually demanded.
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Cole, J.
This is an action to compel contribution bj one surety to another for money paid on a bond given by a guardian on the sale of real estate belonging to his ward. The bond was joint and several, and was conditioned that if tbe guardian “ do and shall justly and truly account for all the proceeds of the sale of said real estate and dispose of the same according to law, and perform all orders and decrees of the county court by him to be performed in the premises, then the obligation to be void.”
On the trial, the plaintiff offered in evidence a certified copy of an order on accounting' before the county court, which showed that the guardian had been cited to appear before that court and render an account of his guardianship; that the guardian and sureties did appear, and, after hearing the allegations and proofs of the parties, the court adjudged that there was due from the guardian to tbe ward the sum of $978.30, and ordered the amount to be paid within sixty days after the service of a copy of the order upon the guardian and sureties. The money not being paid, an action was subsequently commenced on the bond against the guardian and this plaintiff, in which judgment was rendered against them for $1,009.48 damages, and $57.24 costs. The plaintiff paid this judgment, and has sued and recovered a judgment against the cosurety for one-half of the amount thereof; also the sum of $12.50, which was one-half the amount paid the attorney who appeared for the sureties in the county court on the accounting. The principal question in the case arises upon the rulings of the court in excluding certain testimony offered on the part of the defendant. The defendant offered to prove that tbe guardian sold the land to the plaintiff at the sale for $1,300, receiving in payment a span of horses at $500. twenty acres of land at [377] $500, and $300 in money; that previous to the sale the plaintiff: had sold the guardian the horses, taking a note and chattel mortgage on the horses, with the understanding and agreement that he was to bid off the land and deliver the guardian the note and mortgage back in part payment for the land; that this arrangement was entered into'with intent to cheat and defraud the ward; that the sale between the plaintiff and guardian was fraudulent, for the reason that the ward’s land was sold for about half its value, and a greater price given for the horses and the land received in exchange than the property wa< worth. This, in substance, was the offer. The testimony was objected to and ruled out, on the ground that these matters could not be inquired into in this action ; that the proceedings in the county court on the accounting, and the judgment in the circuit court, were conclusive as to the extent of liability on the part of the sureties. The question is, Was this.evidence admissible? It is not obvious upon what principle the facts offered to be proven would constitute a defense to this action for contribution. They would only tend to show that a fraud was committed upon the ward, and that her property had been sacrificed by the arrangement entered into between the plaintiff and guardian; but they would not show, nor have any tendency to show, that there had been no breach of the bond, or that the sureties were not justly bound to pay the amount which was found due the ward on the accounting. The counsel for the defendant concedes that the plaintiff was liable to the ward for the amount found due from her guardian, and that this amount has been paid by him; but he says it does not follow from this that his cosurety is liable to him for contribution. Why not ? Suppose it were shown that the guardian was guilty of a gross breach of trust in dealing with the estate of his ward, and .that the sureties, instead of being held responsible to the ward for $1,000, ought justly.to pay her $2,000 ; how would these facts tend to exonerate the defendant from the payment of his proportion of the $1,000 ? If the [378] ward sees fit to acquiesce in tbe fraud of her guardian, and does not choose to bold the sureties to the full measure of their liability, why should the defendant complain, so long as he is only called upon to pay his share of the debt actually demanded.
But there is, perhaps, a more satisfactory ground for excluding the evidence offered, which is, that the sureties were concluded by the order of the county court as to the amount due. The order shows that the sureties appeared by counsel before that court on the hearing and final accounting of the guardian. But even if they had not appeared at the accounting, we are still inclined to hold, upon the authorities, considering the nature of their contract and the relation they occupied to the guardian, that their responsibility would be fixed in a proceeding to which they were not parties, and where they had no opportunity to contest the amount due. The law in relation to the effect of a judgment against a principal, for the purpose of charging the surety, has frequently been considered by the courts; and the decisions are not always in entire harmony on the subject. Distinctions have been made in the application of the rule of law, which are not very marked and obvious. The general rule of course is, that a judgment is conclusive onl}'- as against parties and privies; but to this there are exceptions. And it is conceded that whenever the surety has contracted in reference to the conduct of one of the parties'in some suit or proceeding in the courts, he is concluded by the judgment. Pratt v. Donovan, 10 Wis., 378; Booth v. Ableman, 20 id., 602; Smith v. Lockwood, 34 id., 72. And it has also been decided that the sureties upon the bond of an administrator are bound by a decree against the administrator finding assets in his hands and nonpayment of them over, to the same extent to which the administrator himself is bound. Stovall v. Banks, 10 Wall., 583; Heard v. Lodge, 20 Pick., 53; Garber v. Commonwealth, 7 Barr, 265. The sureties are not to be concluded by a,judgment suffered collusively by the administrator (Boyd v. Caldwell, 4 [379] Rich., 117; Heard v. Lodge, supra); but as to all matters of defense going to the merits of the debt as between the original parties, the judgment against the administrator is held conclusive in an action upon the bond. In Stovall v. Banks, which was an action upon an administrator’s bond, it was claimed that there was no such privity between the principal and surety as to make a decree against the administrator as to the amount of assets in his hands anything more blian prima facie evidence against the surety; but the court overruled the point in the following language: “ The decree settled that the administrator of the intestate, Alfred Eubanks, held in his hands sums of money belonging to the. equitable plaintiffs in this suit, as dis-tributees of the intestate’s estate, which he had been ordered to pay over by a court of competent jurisdiction.; and the record established his failure to obey the order. Thereby a breach of his administration bond was conclusively shown. Certainly the administrator was concluded. And the sureties in th$ bond are bound to the full extent to which their principal ii bound.” p. 588. In the case before us, the order of thel county court fixed the amount of the. proceeds of the sale in the hands of the guardian, and directed its payment to the ward. The sureties had contracted that the guardian should and would justly account for the proceeds, and dispose of them according to law, and would perform all orders of the county court by him to be performed. There was a breach of the obligation on the default of the guardian to pay over as he was ordered to do; and the sureties, as well as the principal, are estopped from controverting the correctness of the order ascertaining the amount. They occupy in many respects a position like that of sureties in a replevin or bail bond, and are equally concluded by the proceedings against the principal. We have not overlooked the cases of McKellar v. Bowell et al., 4 Hawks, 34; Beall v. Beck, 3 Harris & McHenry, 242; Lartigue v. Baldwin, 5 Martin (La.), 193; King v. Norman, 4 Mann., Grang. & Scott, 488; Thomas v. Hubbell, 15 N. Y., 405; S. C., 35 id., 120; [380] to wbicb we were referred on the argument, or which we found in our investigations; but have concluded not to follow them so far as they may conflict with the views above expressed. We do not deem it necessary to more particularly notice these decisions. The conclusion which we have reached is sustained by many authorities not cited in this opinion. See Fay v. Ames, 44 Barb., 328; Watts v. Gayle, 20 Ala., 817; Willey v. Paulk, 6 Conn., 74; Love v. Gibson, 3 Fla., 598.
It was claimed that the recitals in the order of the county court were not evidence that the guardian had been cited to render his account, and that this fact should have been shown dehors the order. This position is untenable in view of secs. 2, 3, ch. 117, R. S.
It is further insisted that the plaintiff could not recover any' portion of the costs. The bill of exceptions does not purport to contain all the evidence, and we must presume that the testimony showed that the plaintiff was entitled to recover the $12.50 which was paid the attorney for services rendered in the county court on the accounting. But we do not understand that the right to contribution extended to the costs incurred by the plaintiff, or paid by him, in the action brought in the circuit court. It does not appear that the defendant authorized the payment of those costs, or agreed in any way to be liable for his share of them, and there is no special count in the complaint which would warrant any evidence to show that he was responsible'for them. Under these circumstances the judgment of the circuit court must be reversed, and the cause remanded with an order to that court to allow the plaintiff to remit from the judgment the costs of the action on the bond, judgment to be entered for him in case he remits; and to grant a new trial if he declines to remit.
By the Court. —It is so ordered.