Joseph Story

“ The only proof of any authority to sell found in the record is the following order: 'Fayette county, to wit, April court, 1818. On motion of Abraham Venable, Patterson Bain, E. Yieser, and Charles Humphreys are appointed commissioners, under the act of assembly of the last session, for the sale of the estate mentioned in said law, as belonging to the heirs of George Adams deceased, situated in Lexington.' The act here referred to is not in the record, but so far as we can gather its contents by the order itself, the commissioners, and not the guardian were authorised to make the sale. ”

“ The answer of M'Donald further sets up a mortgage executed by Venable on the 22d of May 1820, to him, M'Donald, and one George Norten, (who is not a party to the bill) , of a tract of land of about 245 acres (part of the land in controversy) , and of nine negroes (including those in controversy) , to secure them against a bond executed by them as sureties, with Venable as principal, upon his appointment as guardian of the infant children of George Adams deceased, whose mother Venable had since married, she having previously administered upon Adams's estate. ”

“ The answers of the defendants, having denied all fraud, those answers are entitled to stand, unless they are overcome by the testimony of two witnesses, or of one witness and circumstances.
One of the deeds purports, for the consideration of $6260 paid and secured to be paid, to convey to M'Donald the two tracts of land; the other, for the consideration of $3400, to convey certain slaves, household furniture, horses, wagons, hogs, sheep, cattle, &c. and other stock usually belonging to a farm. The bill charges that these constituted the whole estate of Venable ”

“ And the act of 15th January 1811, which is supplementary to the former, and gives a remedy against sureties beyond the penalty of the bond, is expressly limited to bonds given by public officers. No adjudged case has been cited, which goes to establish the position, that the statute of 1810 has been differently construed by the state courts. It is not in our view of the facts a very material consideration, because there is no evidence offered, which proves that a debt was due to Venable's wards, even to the amount of the penalty. ”

“ As the mortgage is not in any measure interfered with by the decree, it is wholly unnecessary to make Norten a party to the bill. He has no interests which are controverted or injured by declaring the nullity of the other deeds. ”

“ The suggestion is that it was after wards sold and the proceeds received by Venable, for which he may be justly held accountable. There was no sale made, so far at least as we have any evidence, under the general act of Kentucky on this subject, passed on the third of February 1813, and therefore that may be laid out of the question; though it is observable, that a guardian is not authorised under that act to sell without an order of court, and giving a bond with sufficient sureties. ”

“ Such a case may exist; but it must involve some suspicion, when the party who resorts to such measures, has a demand hanging over him, which goes deeply to affect his solvency and his interests, and may furnish another and cogent motive for the transaction. ”