#### Molton v. J. and P. Mumford, by their guardian Harrison.

From Jones.

An action of ejectment was brought against the ancestor, pending which he died, and his infant heirs were made parties by scire facias to their guardian, who, in their names, came forward and defended the suit for the infants, and for their benefit took possession of and received the rents and profits of the land during the pendency of the suit; after a recovery by plaintiff in the ejectment, he brought an action for mesne profits against the irtfants, who had never had any possession except that of their guardian before mentioned: held, that plaintiff might sustain the action against them.

Trespass for mesne profits, tried below before Badger, Judge. At the trial a verdict was taken for the pi ain-tiff, sub jeet to the opinion of the Court upon the following case reserved.

An action of ejectment was brought in the name of John Doe, as lessee of the present plaintiff, against Richard Roe, and the declaration was served on Mary Mumford, (mother of the defendants J. and P. Mumford,) as tenant in possession; at the return term, September, 1819, Mary Mumford appeared, entered into the common rule, was made a defendant, and pleaded “not guilty:” in December following she died. At March term, 1820, her death was suggested, and a scire facias ordered to make her heirs parties: at September term following, the defendants in this action were made defendants In the ejectment by the following entry on the record, viz. “ James Mumford and Penelope Mumford, by James Harrison their guardian, acknowledge service of scire facias, and become defendants to this cause.” At the succeeding term, the action of ejectment was tried, the plaintiff had a verdict and judgment, and a hai. fac. poss. issuing thereon, the lessor of the plaintiff was put into possession.

After the death oí Mary Mumford, and pending the ejectment, James Harrison, the guardian of J. and P. Mum *484 ford, took possession of the premises as their guardian; and as such received profits to the-amount of the damages assessed by the jury. The defendants James and Pene* were *ní'an^ °f very tender,years, and did not possess or occupy the land, or receive any of its profits, unless the, occupation-'and Teeeipt ofiprofits by Harrison -as above státéd, be their occupation and ’ receipt in law to charge them in this action.

Upon these facts, it was contended -for .the defendants,

li That the-defendants James and 'Penelope, were- never properly-mad é 'defendants to thte ejectment, and1 that consequently the proceedings in that action were no evidence against them of plaintiff’s title.

2.. That the plaintiffs cannot recover .against >the defendants the profits received by their,guardian as above stated; as they. did not ¡personally intermeddle with, the land or receive the profits: that as this was anaction-for.-a tort,. the-infantS: could not be-made liable to it-by,the acts off?another;, and the trespasser:should,himself have been sued;

The Uourtrbelow wasiof opinionuwithithe,defendants -on the-second-(ground,¡tafeen, and pursuant,to an,agreement stated! ire the - case, set ¡ aside the verdict, and-directed; a nonsuit; ¡whereupon- the plaintiff appealed;

Gaston, for the appellant.

Thesei defendants were, acs tually; andfin: the-mode designated by .law, parties to this suit;

They, defended:the suit;¡would- have-had judgment.in-their favor: had they- succeeded, and. must hte h'ound ,by it when.adversei .

The .lawgives them .a capacity to defend) .by their guardian, and, must ,subject them to the inconveniences-of: a defence:

The, action of mesne profits is-¡consequential on that .off1 ejectment.

In form it ¡is a tort, ,buttin sabstance.;it .is: an account of - rents and profits.

*485The tort is settled in the ejectment; this action fixes the quantum.

By the act, minor heirs defending by guardian are not discriminated from heirs sui juris defending for themselves.

Directing the sdre facias to be issued to them; where they have no guardians, appointing guardians to defend in their behalf; the rendering of judgment against them for the term; all are conclusive that the possession is their possession, not that of the guardians.

It is plain justice, that having received by their guardians, they should refund.

The estate in question was claimed by their ancestor, was liolden by him, descended to them as his, and as such was possessed by their guardians.

Badger,* for the appellee.

The case states, that the defendants never had an occupation of the lands, nor have received any part of the profits; but that Harrison, their guardian, (they being at tbe time infants of tender years,) entered and held possession, and received the profits as their guardian. The action brought against them, is trespass for a tortious occupation; and the only question seems to be, if this action can be .supported against those who have committed no trespass.

No one can be a trespasser, unless he enter, direct another to do it, or assent to it after it is done; and neither of these appear to have been done by the defendants. So it is merely an inquiry whether the tortious act of the guardian be, in law, the act of the infant ward, so as to charge him in an action of tort, without any actual participation or subsequent approval. If there be any such *486principle in our law, it is incumbent on the other side to show it.

But it is supposed that the act of 1799, ch. 18. (2 Rev. P’ S3!20 “h* prevent actions from abating in certain cases,” will aid the plaintiff. That act provides, that when the defendant in ejectment shall die, the action may be revived against his heirs, and shall be continued and heard in the same manner as if the original defendant had lived; and it is said, as the ejectment and the action for mesne profits are so nearly connected with each other, the act has given the latter the same effect against the heirs, as it would have had against the ancestor; and that unless the heir, upon being served with a scire facias, enter a disclaimer, he shall, upon a recovery against him, be concluded in the action for mesne profits by the ejectment, as the ancestor would have been.

This reasoning presupposes, as its foundation, that the heirs were made parties to the ejectment. Before examining its correctness, it is to be observed, that we deny that they were made parties. The act directs a scire facias to issue and be served as the mode by which the heirs are to be brought in, and by the service of which the action stands revived. Ail that appears to have been done here Was, to order a scire facias, which was not issued. At the next term, an entry is made that the infant heirs, by their guardian, make themselves parties. It is contended for tlie defendants, that this was altogether irregular and insufficient. Had the heir been of full age, he might have waived the actual issuing and service of the process; but the infants can be proceeded against only by pursuing strictly the mode prescribed by the statute. Until service, they are not in court, and they have not capacity to waive the service. The guardian can defend them only when they are parties, and cannot elect to make them such;

But suppose the' proceedings regular in the ejectment. It is notdennv by us that the judgment in that action is conclusive of every question determined by it. But what *487was tried, and what was determined? Not whether the heirfc had trespassed or were in possession. It would have been no defence for them, in that suit, to have shown that they never had possession. The action was founded upon their ancestor’s possession, it was revived against them, and by the provisions of the law directing this revival, was tried as if the ancestor had lived. But two positions were presented, or could have been established; 1st, that the lessor of the plaintiff had title as against the ancestor; and 2ndly, that the ancestor was the tenant in possession of tlic premises at the commencement of the suit. But these positions do not support at all the allegation of the plaintiff, that the defendants had trespassed on the lands. It is said the heir should have disclaimed. What was he to disclaim? That he set up title as heir. But setting up title is no foundation for an action of trespass or of ejectment. He could not disclaim that he bold possession, for that was not the ground on which he is made a party; it would have been irrelevant. He was called on to defend the ti-tie and possession of his ancestor. His own title and possession never came in question. An actual adverse possession, by the defendant, is necessary, as the foundation of an action for mesne profits. It is an action of tort in the strk^st sense; and the recovery in it is effected, of course* ter a judgment in ejectment; not because proof of such possession is not necessary, but because that possession has been established in the ejectment. But here, no such question as to the defendant’s possession, was mentioned in the ejectment; and, therefore, the judgment is no evidence of that fact, unless a judgment be evidence of that which is no way material, and which, let the fact be as it might, could not affect or alter the judgment.

But all the proceedings in the ejectment, are against the defendants as heirs. If, therefore, this action ir to be coupled with that, and a recovery effected in this as ■. consequence of the recovery in the former, then this vec^'wy should he had against them also as heirs. But if responsi*488ble as heirs, they should he charged with the profits received by their ancestor. But all the profits, for which the damages are assessed, were received after the death of the ancestor.

But this action is strictly an action of tort; and though said to be regulated by equitable principles, (where, there is a tort) in ascertaining the damages, yet it is in no sense ex quasi toniractu. The defendant, in this form of action, cannot pay money into court. Holdford v. Morris, (2 mis. ns.)

It should be brought against the persons in actual possession, and trespassing; and hence is doubtful if it will lie against the tenant, even for the holding over of his own under-tenant. Burne v. Richardson, (4 Taunt 720.)

Any person in possession, after recovery in ejectment, is liable to this action; and it is no defence to say, that he was upon the premises as the agent and with the license of the defendantin ejectment. Gadlistone v. Forter, (WoodfL. Sf T. 511.)

There is, then, no ground on which to sustain this action. There has been no trespass committed by the defendants. The trespass of the guardian cannot bo their trespass in law; and there is no necessity to enforce the claim against them, for the plaintiff has a clear remedy against the guardian, sanctioned by authority and consonant with justice.

*

Note. The Hon. George E. Badger, at the close of the spring circuit, resigned his seat on the bench of the Superior Courts, and resumed practice at the bar: this explains the reason o*' his having tried the cause below, and afterwards argued it in the Supreme Court.

Taylor, Chief Justice.

It is the duty of a guardian to possess himself of all the lands of which his ward is apparently seised; to receive the rents and profits, for which he is to account to his ward at full age; and generally to pursue all those means pointed out in the act of 1762, towards the execution of his trust. If a suit be brought against the guardian, for the lands of which the ancestor of the ward died seised, it is incumbent on the guardian to make a defence; for if the land is lost by his negligence, it would be a breach of duty in him for which he would be *489'responsible to bis ward. Should his defence be unsuccess» ful, and damages awarded against the ward, it would ° be repugnant to every principle ol justice, that the guardian should be made personally liable; for who, ancor such a state of things, would become either a general guardian, or guardian ad litem. When the law imposes a duty or obligation on a man, it will protect him in the discharge of it, so long as he acts within the bounds of his duty. The guardian was compellable by law to defend the ejectment; he was compellable by law to enter upon the lands after the death of Mary Mumford, and receive the profits, not for his own use, but for the eventual benefit of his wards, if they had succeeded in the suit. Not one tortious act has been committed by the guardian, for it would be a contradiction in terms to call that so, which was done in indispensable obedience to the act of 1799, that if the heirs are minors after the death of their ancestor, against whom an ejectment had been instituted; the guardian must defend the suit. The tort supposed in the action of ejectment, is the original trespass or dispossession; that was committed by the ancestor in his lifetime, and the interference of the guardian was a rightful act, because exacted from him by law, and because, to all human appearance, it might result in benefit to the heirs. The simple statement satisfies me that the guardian is not liable, and goes very far to prove that the heirs are liable; as the law provides, that the only way in which a suit against an infant can be defended is by guardian; a recovery in such suit, is a recovery against the infant, and must be binding upon him; for if a suit had been brought by a guardian, or next friend, the recovery would have enured to the benefit of the infant. By intendment of law, the suit and recovery are against the infant, as appears by the form of pleading: “ and the said C. B. by G. H. admitted by the said court here as guardian of the said C B. to defend for the said C. B. who is an infant under the age of 21 years, comes *490and defends the wrong and injury, when, &c.” (2 Chitty 409.) The infants then did really receive the rents and profits by the hands of their guardian, who would have been accoutltable to them had a contrary judgment been rendered; the guardian is the main instrument through which the infant’s interests are managed; he must be bound by the guardian’s acts generally, but emphatically by those acts which are done in obedience to the law. It would be singular that a judgment recovered against an infant by his guardian in lite, should not bind him, when the guardian may, of his own accord, do so many acts that will; he may submit the infant’s rights to arbitration, and the infant would be bound by the award. Roberts v. Naibold, (Comb. 318.) Upon the whole, I am quite satisfied that there ought to be a new trial, and the non-suit set aside.

The rest of the Court concurring, the non-suit was set aside, and

The judgment reversed.