Reed v. Hedges

Citations

• 16 W. Va. 167
• 1880 W. Va. LEXIS 24

Syllabus

<p>1. A guardian’s bond is not invalid because the condition does not state the appointment of the guardian.</p> <p>2. A guardian’s bond contains a covenant or condition to save harmless the recorder by whom the guardian was appointed and who took the bond. Although this is not required by the statute, it does not . avoid the bond.</p> <p>8. Although the condition in a guardian’s bond is not as extensive as the statute requires, yetas it relates to a part of the duty of the guardian, the bond is not void, but binds the obligors to the extent of the condition.</p> <p>4. Where a court or officer has capacity to take a bond, and makes a mistake by omitting some condition prescribed, or inserting some condition not authorized or illegal, unless the statute by express words or necessary implication makes it wholly void, the bond is not void; the good shall not be vitiated by the bad, and the bond may be sued on, so far as the conditions are good, as a statutory bond.</p> <p>5. There is no solid distinction between bonds and other deeds containing conditions, covenants and grants not mala in se but illegal at the common law, and those containing conditions, covenants or grants illegal by the express prohibition of statutes. In each case the bonds are void as to the conditions, covenants or grants that are illegal, and are good as to all others which are legal and unexceptionable in their purport. The only exception is, where the statute has avoided the whole instrument to all intents and purposes by express words or necessary implication. Under a fair construction of the last clause of section 3 of chapter 79 and section 13 of chapter 82 and of section 7 of chapter 83 of the Code of 1808, it is competent, and in many cases eminently proper, for the circuit court to direct the proceeds of realty in a case of partition brought under the said 7!)th chapter to be placed by the court in the hands of the guardian, as such, of the infant or infants to whom the same belong; and t