#### Paris Mason, for the use of Sarah Mason, guardian of Martha Maria Mason v. William S. Wait et al.

Error to Greene.

1, Guardian — cannot delegate trust. The general rule of law is that a trust cannot be delegated. The exception to this rule, that a power coupled with an interest will authorize the delegation of the trust, by making an attorney, does not include -a guardian, nor authorize the latter to appoint an attorney to execute a deed, (a)

2. Guardian and ward — interests not adverse. It is not necessary that a ward should have any other day in court, upon an application by an guardian for leave to sell

*132the ward’s real estate, than such as the former has by his guardian’s presence. Such a proceeding is not adverse to the ward’s interest, nor against him. (b)

3: Same — intervention. A -third person can be permitted to question the power and acts of a guardian, only when the rights of the former depend upon the existence and due exercise of the powers of the latter.

4. Same — sale of realty. A guardian has no power to sell the real estate of his ward, unless authorized by the court, or, perhaps, by the legislature.

5. SAME — same. Where a power is conferred upon a guardian to sell his ward’s estate, it must be considered as a naked power, and be strictly pursued.

6. Same — same. Where the legislature authorizes a guardian to sell the land of his ward, under the direction and sanction of the judge of probate, a sale made without his consent and direction is void.

7. Same — same. It is constitutional for the legislature to authorize a guardian to sell the real estate of his ward, under the direction and sanction of the court of probate.

8. Constitution — construction of. In ascertaining the powers of a state legislature, we examine to see what are denied by the constitutions of the United States and of the state, whereas in interpreting the constitution of the United States, we are obliged to find a grant of power, before it can be exercised.

9. Same — legislative omnipotence. The legislature of a state can- pass any law not prohibited by its own constitution and that of the United States, and beyond the limitations and restrictions contained in those constitutions it is as absolute, omnipotent, and uncontrollable as parliament, (c)

10. Caveat emptor — doctrine applied. The principle of caveat emptor applies to a guardian’s sale ; and a suppressio veri on the part of the guardian will not invalidate the sale, or enable the purchaser to rescind it. Aliter of a suggestio falsi.

11. Promissory note — failure of consideration. A want of title in the vendor, under the statute of Illinois, may be set up by the vendee, who executes a note for the purchase money, as a want or failure of the consideration of the note.

12. Same — same. Upon a sale of land, the bond for a conveyance, or the covenant to convey is not the consideration upon which a note given for the consideration money is based. The true consideration is the estate agreed to be conveyed, (d)

*133This cause was heard in the court below, at the April term, 1840, before the Hon. Wm. Thomas. The facts of the case are sufficiently shown in the opinion of the court.

N. D. STRONG and Junius Hall, for the appellant:

I. The first plea of the defendants is bad; 1. Because the acts recited are constitutional.

It is only in a clear case that the judiciary will interfere to declare a law passed by the legislature unconstitutional. 1. Peters’ Cond. R. 211.

A legislature of a state has power to do all things from which they are not restrained by the constitution, or by principles of natural justice.

Acts like the present seem to have been passed by the legislature, without question, from the commencement [* 128] of parliaments. See pamphlet laws of Illinois, passim,; Private Acts of Parliament; 1 Peters’ Cond. R. 172; 2 Peters 413, 655; 8 Peters 88 ; 11 Peters 420 ; 4 Monroe 94; 6 Monroe 594; 16 Mass. 326; 16 Wend. 436.

These laws have been long acquiesced in. Titles have been acquired, sales made under them in good faith; and whatever may have been their original policy, to question them now would be to disturb many titles' fairly acquired. This circumstance ought to weigh with the court no less than the cotemporaneous exposition.

The plea sets out a total failure of consideration and that the consideration was the sale of lots, and the delivery of a bond. Was not the bond delivered ? If so, the consideration of the note has not totally failed. But the consideration of the note was the bond itself; and in this point of view it makes no difference what was the title of the guardian, or whether the acts were or were not constitutional.

A man may covenant to sell land to which he has no title. Platt, on Cov. 34; 20 Pick. 105.

Of mutual covenants. 20 Johns. 130; 15 Mass. 171; 4 Bibb 493; 5 Littell 248; 1 Monroe 34; 3 Marshall 112, 254, 282; 4 Marshall 187; 1 Marshall 107; 20 Pick. 105; 2 Greenl. 82; 9 Peters 607, 628; 2 Scam. 466.

The court will look to the intention of the parties. Such undertakings have been considered absolute. One could hardly expect that a negotiable note would be preserved as a dependent covenant or undertaking.

But the bond does not undertake for title ; but only for a deed with warranty. 15 Pick. 552; 16 Johns. 268; 20 Johns. 130; 5 Mass. 499; 2 P. Wms. 631; 7 Vesey 202; 5 Cranch 262; 2 Johns. 595; 3 Cowen 520.

II. Second plea is bad for same reason as first; it questions title only.

*134It is sufficient that the guardian comply before the estate should vest in the purchaser.

But the subsequent sanction and approval of the court made the thing a res adjudícala; the sanction of the court cannot be questioned collaterally.

III. The plea is manifestly bad. The defendants cannot set-up their own neglect to defeat their own promise.

IY. The fourth and sixth plea,s are bad ; a guardian.may have a special agent.

A guardian is not a mere delegate, but has an estate. Principal and Agent 226; 3 Johns. Gas. 53.

But if the guardian was not bound, the individual was.

Administrators or trustees covenanting, as such, are [* 129] personally bound. 8 Conn. 19; 4 Conn. 495; 4 Peters’ Cond. R. 29; 8 Johns. 120.

A person dealing with an agent is bound to know the extent of his authority. 3 Johns. Ck. R. 307 ; 1 Peters 290 ; 9 Peters 628.

But if the bond was not the bond of Mrs. Mason at first, it became so by ratification.

V. The fifth plea is the same with the second, and admits of the same answer.

VI. The sixth plea alleges that the guardian knew of the defects in the law and proceedings of the court, but did not communicate them. The facts conceded were the existence of a published law, and of public records.

It is not supposed that the doctrine of a concealment of such a fact, without actual misrepresentation, was ever applied to real estate.

J. J. HARDIN, D. A. Smith, and S. T. Logan, for the appellees:

The law is unconstitutional; 1. Because it is the exercise of judicial power by the legislature. The legislature by its act decided that Sarah Mason is the guardian of Martha Maria Mason, and that Martha Maria Mason is the sole heir of James Mason,. deceased. It directs and empowers Sarah Mason to make sale of the land of the minor heir, which operates as a judgment. It directs the court of probate to act ministerially, and not to use its discretion in assenting to, or ordering a sale of the property. The court of probate merely is to act as an advisory and not directory tribunal to the guardian. It does not give the court any authority to see that the guardian invested the proceeds of sale for the benefit of the ward; and it authorizes the guardian to use the proceeds of the property, at her discretion, to the best advantage of the ward. 11 Mass. 396; 2 Peters’ Gond. R. 321; Lane et al. v. Dorman et ux. 3 Scam. 239.

2. It is a violation of Art. VIII, § 8, of the state constitution, *135which provides that “ no person shall be disseized of his freehold . without the judgment of his peers, or the law of the land.”' The “ law of the land,” in legal language, is understood to mean the judgment of a court. 3 Story’s Com. on Const. 661, and references there cited.

The heir, on the death of her father, obtained a vested interest in the real estate of her father. 2 Peters 657. This vested interest is subject to any incumbrances imposed on it by the ancestor, to a lien for his debts, and is therefore termed an interest sub modo. Here there was no pretence, in the law or in fact, that there are any such incumbrances, or debts, and therefore the interest of the minor heir was absolute and indé- [*130] feasible. The law authorizes this vested and absolute right of the heir to be sold by Sarah Mason; and. it does not even order the guardian to reinvest it for the benefit of the ward.

By the same exercise of power, all the estates of minors, after they have become vested in them by law, may, by special acts of the legislature, be invested in railroad, or state, or other fancy stocks, or be wholly squandered, by leaving the disposition of the estate at the discretion of the guardian. When rights become once vested by law, they cannot be divested by a subsequent law. Fletcher v. Peck, 2 Peters’ Cond. R. 321.

This case is different from the cases decided in Kentucky, in 16 Peters 25 and in 2 Peters 657; because in these cases there was an order to sell real estate to pay debts. Here there were no debts, and a court could have afforded adequate relief.

If the law is constitutional, still the defendants are not bound to pay the notes, because the provisions of the law have not been complied with. We are met with the objection that the bond of Sarah Mason, by her attorney in fact, is a sufficient consideration for the notes, and we must resort to our action on this bond. The law abhors circuity of action, and now courts admit any defence to notes, even in eases of warranty, to avoid circuity of action. 4 Wend. 491; 1 Peters 464; 11 Johns 50.

The purchasers were not contracting for a bond and a lawsuit, but for a title to the land, \yhere there is a total failure of title, it is proper to put in this defence to a recovery on the note, as well in eases of deed with warranty, as in cases of bond or articles of agreement. Tyler v. Young et al. 2 Seam. 444 ; Myers v. Aikman, 2 Scam. 453 ; Bank of Columbia v. Hagner, 1 Peters 464 ; 4 Taunt. 334 ; 1 Wheat. Selwy. N. P. 137 ; 2 Esp. R. 640; 10.Johns. 266; 11 Johns. 50, 525; 5 Pick. 395; 14 Pick. 217, 293 ; 22 Pick. 166; 4 Term R. 761; Sugden on Vendors 340; 1 Swift’s Dig. 200.

Courts never turn a person over to an action on his bond, unless the bond is valid, and is sufficient to afford an adequate

*136remedy. Now this bond is-void: first, because Paris Mason is not bound by it, as he signed only as attorney in fact; secondly, Sarah Mason is not bound, because she executed as guardian, and received no consideration for so doing (8 Johns. 120; 7 Term R. 350) ; thirdly, Martha Maria Mason is not bound, because she is no party to the transaction, and a guardian cannot bind her ward by bond ; fourthly, a guardian has no right to execute a bond, or sell the estate of his ward; fifthly, and if Sarah Mason acted as the commissioner of the legislature, or of the court, yet neither the law, nor the order of court authorized her to execute a bond to the purchasers. An administrator selling real estate by order of court, or a master in chancery, acting as it is contended [*131] Sarah Mason did, never were presumed to have authority to execute bonds to purchasers. The proper course was to sell and convey and take security by note and mortgage, to the satisfaction of commissioner.

If laws are constitutional, yet they must be strictly complied with. 1 Scam. 322; 4 Peters 358. This has not been done, as is alleged in pleas second and fifth. It was necessary to give the ward notice by giving her a day in court. 2 Ohio 292.

The sale and bond are both void, because the sale was made and bond given by Paris Mason, attorney in fact for Sarah Mason. If Sarah Mason acted as guardian, or as commissioner of the legislature or court, the trust reposed in her was a special personal one, and she could not sub-delegate her authority to another. Story on Agency 14, 16, 30, 96 ; .2 Kent’s Com. 633 ; Paley on Agency 148; Sugden on Vendors 207 ; 4 Mass. 522, 595.

By express agreement of the parties, if defendants did not pay their note in ten days after due, then the contract was to be at an end. All the papers signed at the same time make but one contract, and all are to be considered in interpreting the contract. This understanding is evinced by the latter clause of the bond given to the defendants. This clause was not inserted for the benefit of the plaintiff alone, for then it would not be reciprocal, while it is evident it was the intention of the parties that fit should be.

If Sarah Mason or Paris Mason failed to comply with the law, rand concealed that fact from the purchasers, it vitiates the sale. '.Sugden on Vendors 205; Breese 34.

(a)

Cases Citing Text. Sale of minor’s land by guardian without authority, if ratified by minor after his majority and before sale is dis-affirmed by purchaser, becomes valid. Mason v. Caldwell, 5 Gilm. 196.

Absolute owner of fee of land may sell by agent. Gillespie v. Smith, 29 Ill. 473, 482.

(b)

In application of administrator for leave to sell land of his intestate, heirs need not be made formal parties. Gibson v. Roll, 27 Ill. 88, 90; Swearengen v. Gulick, 67 Ill. 208, 211. Statute now requires heirs to be made parties. R. S. 1874. Administration ch. 3, §99; S. & C’s Stats, p. 233, Cothran’s Stats. (1885) p. 73-

Rule stated in head note enforced. Smith v. Race, 27 Ill. 387, 391; Fitzgibbon v. Lake, 29 Ill. 165, 177. R. S. 1874, Guardian and Ward, ch. 64 §30, [S. & C’s Stats, p. 1245 ; Cothran’s Stats. (1885) p. 772] requires personal service, of notice of application on ward.

(c)

Legislature has not power to determine fact that particular intestate died owing debts. Davenport v. Young, 16 Ill. 548, 551.

Rule stated in head note enforced. Prettyman v. Tazewell County, 19 Ill. 406, 411; Hawthorn v. People, 109 Ill. 302, 307.

7. Legislature has not power to authorize administrator to sell his intestate’s land to pay debts, without judicial sanction. Rozier v. Fagan, 46 Ill. 404, 406.

(d)

Plea of failure of consideration must state facts, which show that consideration has failed. Evans v. School Commissioners of Greene County, 1 Gilm. 654, 657.

Where law court and chancery court have concurrent jurisdiction, court which first acquires jurisdiction, must retain and dispose of case. Mason v. Piggott, 11 Ill. 85, 88.

Rule stated in head note enforced. Davis v. McVickers, 11 Ill. 327, 328; Foster v. Jared, 12 Ill. 451, 454.

If maker of note does not receive that for which he gave note the consideration fails. Oertel v. Schroeder, 48 Ill. 133, 135.

In action by vendor of land on note given him for purchase money, if time fixed for -conveyance has passed and he has not power to convey the title he contracted to convey, he cannot recover although vendee was first in default. Denby v. Graff, 10 Bradw. 195, 199.

Scates, Justice,

delivered the opinion of the court: Debt on .a promissory note. The declaration contains the usual money counts and an account stated.

The defendants pleaded seven special pleas.

The first plea sets forth that the consideration for the note was ■ the sale of certain lots and lands in Grafton, and the delivery of a ■pretended title bond given by Sarah Mason, guardian for Martha . Maria Mason, infant heir of James Mason, deceased, by her attor*137ney in fact, Paris Mason, the plaintiff here; which recites the sale of the lots, the execution of the note, and. is conditioned that, upon the payment of the note, Sarah Mason will execute a good and sufficient deed, with warranty,for the lots; to do which she covenants for herself and her successor, as guardian. The plea further avers that this sale, bond, and all her powers were executed, made, and derived under two special acts of the legislature of January 20, 1835, and January 16, 1886, recited and set forth in the plea; that the laws are unconstitutional and void ; and that Sarah Mason had no power to sell and convey; and therefore the consideration has wholly failed.

The second plea avers that the note was given for the consideration set forth in the first plea; that Sarah Mason did not comply with the requisitions of said act, by giving [* 132] bond and obtaining the' sanction and direction of the court of probate of Madison county, in relation to said sale ; that she had no power to sell: and that the consideration has wholly failed.

The third plea sets forth that the defendants failed to pay the money, as set forth in the condition of the bond ; that the contract thereby became forfeited, and according to the condition of the bond, null, void, and rescinded; that she had no power to sell nor right to convey; and therefore the consideration has failed.

The fourth plea sets forth the consideration of the first, and that said sale and title bond were made by Paris Mason, as attorney in fact of Sarah Mason, guardian, neither of whom have title, etc., and that he had no power and authority in law so to act; and therefore the consideration has wholly failed.

The fifth plea sets forth the same consideration as the first, and that Martha M. Mason, being an infant, had no day given in said probate court; and that said court never made an order divesting her of her estate, nor sanctioned or directed said sale; that Paris and Saraii have no title; and so the consideration has wholly failed.

The sixth plea avers the same consideration, and that Paris Mason was not attorney in fact by deed; and so the consideration has failed.

The seventh plea sets up a knowledge of all those defects of power, and errors in the proceedings, in Paris Mason, and a concealment of them by him, and that he had no title ; and so the consideration has failed, because there was no title to convey.

Several demurrers to the first, third, fourth, fifth, and seventh pleas were sustained to the first and third, and overruled as to the others.

Replication to the second plea, that after the sale and delivery of the title bond, Sarah Mason reported her actings and doings to the court of probate of Madison county, which were approved *138and sanctioned by said court;*by reason of which she ivas fully authorized and empowered, under said acts, to convey a good title. Demurrer to this replication sustained.

Replication to the sixth plea, that Paris Mason acted as her attorney, with her knowledge and consent; and that she after-wards ratified and confirmed all his acts in the premises. Demurrer to this replication overruled.

These decisions against the plaintiff, in overruling the demurrer to the fourth, fifth, and seventh pleas, and sustaining the demur'-rer to the replication to the second plea, are assigned for error.

The court decided correctly in overruling the demurrer to the fourth plea. The general rule is that a trust cannot be del- [* 133] egated. Story on Agency 14, § 13 ; 1 Livermore on Agency 45-6; Paley on Agency 148 ; 4 Mass. 530 ; 2 Kent’s Com. 633 ; Principal and Agent 226. The exception to the rule, that a power coupled with an interest will authorize the delegation of the trust, by making an attorney, does not take this ease out of that rule. For although the guardian may have an interest (3 Johns. Cas. 56) in maintaining and asserting the ward’s rights, yet it is not that kind of interest which the law intends shall authorize a delegation of the agent’s power. The case in 9 Peters 627, and the act of Virginia, referred to in Principaland Agent, are special, and not referable to the general principle.

The fifth plea sets forth a good defence. ■ It was not necessary that the ward should have a day in court. The proceeding was not adverse to her interest, nor against her. It is her own application, by her legally constituted guardian. She is in court by her guardian. No summons to her was necessary ; nor could she have any other day, or guardian ad litem, in court, unless upon suggestion, as amicus curia, it should appear that the guardian was about to abuse the trust, or was seeking power to injure and misapply the estate. I think it altogether an erroneous view of such cases, to regard them as proceedings against the heir, to divest her of her interest or property. It is an application by her, or on her behalf, for power and authority to do acts for her benefit and interest. The law, however jealous it may be of the conduct of guardians, or watchful of the interests of wards, would never tolerate the absurdity of appointing a guardian for infants, incapable of consenting or acting for themselves, and then treat every act of such guardian in disposing of the ward’s property, and managing the estate, as a prbceeding against the ward to deprive her of her property. If a case of abuse or mismanagement by the guardian was made to appear, a court of chancery would correct the abuse. But it does not lie in the mouth of every one who may deal with a guardian, to claim the wardship, by defending for her, as if she was sued by the guardian. They can only be permitted, as is done in the remainder of this plea, to scrutinize *139and question the power of the guardian to act, when their own rights depend upon the existence and due exercise of that power, within the scope of his duty and authority as guardian. This plea therefore, makes it necessary to enquire whether this sale was made according to the special acts of the legislature.

The act of 1835, § 1, empowers Sarah Mason, as guardian of Martha M. Mason, to sell and convey, by sufficient deed or deeds, either at private or public sale, under the direction and sanction of the judge of probate of Madison county.

Guardians have no power to fcell the real estate of their wards, unless authorized by the courts, or perhaps by the legislature. Where authority is conferred on a guardian to [* 134] sell his ward’s estate, it is a naked power, and must be strictly pursued.

In this instance she was authorized to sell and convey, under the direction and sanction of-the judge of probate. These she did not think proper to obtain, or could not; but proceeded to sell without them, literally departing from the terms of the power. The legislature did not think proper, in this instance, to trust to her discretion ; yet she disregarded the terms upon which she was authorized to sell. Under such powers, where two are authorized to sell, one cannot sell alone ; if one is authorized’to sell, with the approbation and under the direction of another, that other must first approve and direct. The plea, therefore, is good, and a sufficient bar to this action. But as the parties have agreed, that if either desire it, the cause shall be remanded with leave to plead de novo, it may be necessary to notice a further objection. It is said that these acts of the legislature are unconstitutional, because it is an exercise of a judicial power.

The convention in dividing thepowers of the government could not have used a more comprehensive, and at the same time, more definite designation of power, than they did in the phrase “judicial powers.” Yet, it is to be regretted, that the character of the act, whether legislative, executive, or judicial, is so indefinite or mixed as not to be referable to the one class or the other of these powers, with clearness and distinctness. In the case of Lane et al. v. Dorman et ux. 3 Scam. 238, this court commenced its examination of this class ol powers ; and there held a certain act unconstitutional, because the matter determined was of a judicial nature. The acts reviewedin Edwards v. Pope et al. 3 Scam. 465 were sustained. Here is a case differing from each, and yet referable to the same class of powers.

We have interpreted these acts as conferring this power, when directed and sanctioned by the probate court ; and have decided that it could not be exercised until that direction and sanction were first obtained. Here, then, the legislature have conferred power and jurisdiction upon that court; an equitable power to *140supervise, protect and aid the ward, through her guardian, as a court of chancery. To deny this power to the legislature, in this view of its action, would almost annihilate its powers. A different rule obtains in interpreting the powers in the constitutions of the United States and the states. In ascertaining the powers of the former, we examine to see what powers are expressly granted, or are necessarily implied for their exercise. In the latter we only examine to see what are denied by the federal and state constitutions. And my view of the law-making power of these state governments is, that they can do any legislative act not prohibited by the constitutions; and without and beyond these lim- [* 135] itations and restrictions they are as absolute, omnipotent, and uncontrollable as parliament.

The seventh plea relies upon a suppressio veri as a defence. The basis of this defence is fraud; and while the plea attributes a knowledge of a want of power to the plaintiff, and a concealment of it; yet it does not appear that the. plaintiff pretended to sell in any other right than as guardian, nor that she pretended to have any other title than that of the ward. There are-no false representations alleged. Sug. on Vend. 249, note 136; Breese 34. The power and appointment of a guardian are matters of law, and of record, which those dealing with them should and may enquire into, and, I think, are bound to notice, to the extent to which the ■doctrine of caveat emptor should apply with us. The appointment is recorded in the probate court; the powers are such as the law confers. This much the defendants should examine. If she pretends to go beyond these, they should call for her authority. If they deal without it, I think they ought to be concluded by their own negligence. These remarks I confine to the character in which the party acts, and the powers she assumes to exercise, and in relation to a suppressio veri. If there was a suggestio falsi, or fraudulent representations, the question would be different. This plea is therefore bad.

The demurrer to the replication to the second plea is already determined by the demurrer to the fifth plea.

A want of title in the vendor may be set up under our statute, as a want or failure of the consideration of the note sued on. Gale’s Stat. 526, § 5; R. L. 483. We do not regard the title bond in this case, or the covenant for title, as the consideration; the true consideration is the estate. 14 Pick. 217, 296; 22 Pick. 166; Owings v. Thompson et al. 3 Scam. 502; 1 Pick. 455.

The judgment is affirmed with costs, and the cause remanded for further proceedings.

Judgment affirmed.