Lowry v. Fisher, 2 Bush (Ky.) 70 (92 Am. Dec. 475). He must not reduce himself to insolvency, and must clearly and without doubt reserve enough property to pay all of his debts. Bump on Fraud. Con. 295; Lee v. Lee, 77 Ind. 251; Crumbaugh v. Kugler, 2 O. St. 373; Miller v. Wilson, 15 Ohio 108. An insolvent is defined as a person who is unable to pay all his debts from his own means. Riper v. Poppenhausen, 43 N. Y. 68.

Voluntary conveyances are most frequently made to some relative of the debtor. There is no doubt that, while solvent, he may make settlement of property on wife or children. Higgins v. White, 118 Ill. 619 (8 N. E. Rep. 808); Miller v. Wilson, 15 Ohio 108; Huffman v. Copeland, 86 Ind. 224; Jones v. Clifton, 101 U. S. 225; Lloyd v. Bunce, 41 Io. 660; but a conveyance of this kind, although made without fraudulent intent, will be set aside if necessary to satisfy creditors, Brice v. Myers, 5 Ohio 121, notwithstanding it was made in execution of a promise made by the donor when unembarrassed, Rucker v. Abell, 8 B. Mon. (Ky.) 566 (48 Am. Dec. 406). One who has his debt secured by mortgage cannot complain of a voluntary conveyance. Stephenson v. Donahue, 40 O. St. 184. A voluntary conveyance by a partner, of his individual estate, when the partnership property is sufficient to pay the partnership debts, is valid. Hardy v. Mitchell, 67 Ind. 485.

In a recent case the Court of Errors and Appeals of New Jersey say:

"The rule, then, to be applied in deciding whether the conveyances assailed in this case are fraudulent or not, must, I think, be regarded as well settled and clearly defined. If the conveyances were voluntary, they must, as to such parts of the complainants' debts as had been contracted prior to the time when they were executed, be held to be void; but, to warrant the court in declaring them fraudulent as to such parts of the complainants' debts as were contracted subsequent to the time when they were executed, there must be proof clearly showing that they were executed with an intent to defraud such persons as should become creditors of the grantor after their execution." Gardner v. Kleinke, 46 N. J. Eq. 90.

GUARDIAN.

ROODHOUSE V. ROODHOUSE ET AL.

(132 Ill. 360.)

Guardians-Partition of ward's real estate

Where a guar

dian has an interest in the matter, hostile to that of the ward, he cannot act for the ward in a proceeding for partition. In such case the ward should be represented by a next friend or guardian ad litem.

SCHOLFIELD, J.

Sec. 192. Facts stated. This is a writ of error to bring in review a decree of the circuit court of Greene county, assigning dower in and making the partition of lands whereof Peter Roodhouse died seized. The bill is filed by Harry W. Roodhouse and Benjamin T. Roodhouse, a minor, by Harry W. Roodhouse, his guardian, and prays the assignment of dower to the widow of Peter Roodhouse, deceased, and that the lands remaining be partitioned between the petitioners, his sole heirsat-law. Commissioners were appointed, who assigned dower and made partition as prayed, and they reported their action to the court, and it was confirmed.

Sec. 193. Guardian-Partition of the ward's real estate. The only question that we think it necessary to consider is, whether it was error to partition the lands without having the minor represented by a guardian ad litem or a next friend. It is plain that the interest of the ward and the guardian were hostile, since what was given to the one was taken from the other. We have held, that it is error to render a decree for partition of property of a minor unless he is actually represented in the court, either by a guardian, a guardian ad litem, or a next friend. Cost v. Rose, 17 Ill, 276; McDaniel v. Correll, 19 Ill. 226 (68 Am. Dec. 587); Rhoads v. Rhoads, 43 Ill. 239; Hall v. Davis, 44 Ill. 494. Our statute, it is true, provides that an infant may petition, by guardian or next friend, for partition of lands; (Rev. Stat. 1874, chap. 106, sec. 3); but, upon the clearest principle, this means, when such guardian or next friend is competent to act in the case; and a guardian whose interest is hostile to that of his ward, is incompetent to act for his ward in respect to that interest. Simpson v. Alexander, 6 Coldw. (Tenn.) 619; Parker v.

Lincoln, 12 Mass. 16; Trustees v. McLendon, 43 Miss. 254; Wells v. Smith, 44 Miss. 296. The minor should either have been made defendant, and had a guardian ad litem, or have petitioned by his next friend or guardian ad litem, and been represented by counsel distinct from those representing his guardian. For the error indicated, the decree is reversed, and the cause remanded for further proceedings.

Decree reversed.

ANNOTATIONS.

Sec. 194. Guardian's sales-Dealing with his wardPower to encumber land. Where one occupies the relation of even a quasi guardian he cannot become a purchaser at a judicial sale of the ward's real estate. Hindman v. O'Connor, 16 S. W. Rep. 1052*. Where a curator has purchased property with the funds of his ward and taken the title in his own name, a subsequent mortgagee, who takes his mortgage with constructive. notice, takes subject to the trust. Patterson v. Booth, 15 S. W. Rep. 543*. A guardian is not liable for damages resulting to his wards from a sale of their land for taxes, it being shown that he at no time had sufficient of their funds with which to pay the taxes, Wainwright v. Burroughs, 27 N. E. Rep. 591*.

A vendee at a guardian's sale cannot defeat the recovery of the purchase money on the ground that the contract was made before the order of court to sell was obtained. Morris v. Good

win, 27 N E. Rep. 985*.

Under the statutes of Texas, it was held that slight irregularities did not render voidable a sale by guardian of his ward's lands, Butler, Guardian v. Stephens, 77 Tex. 599 (14 S. W. Rep. 202). In dealing with his ward's estate the guardian must not permit himself to assume an attitude where his personal interests will even appear to be in conflict with his duty to his ward. Williams v. Schembri, 44 Minn. 250 (46 N. W. Rep. 403).

In Illinois the statute gives the guardian power to mortgage his ward's land. Section 4 of chapter 64 of the Revised Statutes of 1874 provides, that "the guardian of the minor shall have, under the direction of the county court, the care and management of his estate." Section 24 of the same chapter provides, that "the guardian may by leave of the county court, mortgage the real estate of his ward." Section 25 provides: "Before any guardian shall petition the county

mortgage shall be made, the

court for an order authorizing such mortgage to be made, in which petition shall be set out the condition of the estate, and the facts and circumstances on which the petition is founded, and a description of the premises sought to be mortgaged."

Interest paid by the guardian upon a mortgage made in pursuance of an order of court may be allowed the guardian out of the ward's estate. Kingsbury v. Powers, 131 Ill. 182 (22 N. E. Rep. 479); and under this statute it is held that where the court authorized the guardian to mortgage the ward's land for large sums to make valuable improvements the mortgage was valid, United States Mortgage Company v. Sperry, 138 U. S. 313. In Indiana it is held that neither the guardian nor the court possesses any power to dispose of the ward's real estate except such as is given by statute, Ward v. Crane, 3 Blkf. 393. The court has no power to appoint a guardian for unknown heirs, and a sale of real estate by such guardian is void. State ex rel. Ross v. McLaughlin et al, 77 Ind. 335. A guardian can not, either directly or indirectly, become a purchaser of his ward's real estate, Gwinn et al v. Williams, 30 Ind. 374. Any fraudulent scheme to prevent competition of bidders renders a guardian's sale voidable, Devine v. Harkness, 117 Ill. 145 (7 N. E. Rep. 52). A purchaser at a guardian's sale, who receives the land in satisfaction of the individual debt of the guardian due him, takes an invalid title; and if he convey to an innocent purchaser, he becomes accountable for the proceeds as so much trust funds in his hands, Wallace Adm. v. Brown, 41 Ind. 436.

Sec. 195. Duty of a guardian ad litem. The supreme court of Illinois thus defines the duty of a guardian ad litem: "It is the duty of the guardian ad litem, when appointed, to examine into the case and determine what the rights of his wards are, and what defense their interest demands, and to make such defense as the exercise of care and prudence will dictate. He is not required to make a defense not warranted by law, but should exercise that care and judgment that reasonable and prudent men exercise, and submit to the court, for its determination, all questions that may arise, and take its advice, and act under its direction in the steps necessary to preserve and secure the rights of the minor defendants. The guardian ad litem who perfunctorily files an awswer for his ward, and then abandons the case, fails to comprehend his duties as an officer of the court.

Had the guardian ad litem in this case properly discharged the duties of his office, it is not probable that the learned chancellor who heard the cause would have entered this decree. No objection seems to have been interposed at any stage of the case, nor attention called to the grave errors into which the court has fallen. It was his duty to have understood the cause and the rights of the parties, and to have called the attention of the court thereto. While the guardian ad litem will not be warranted in interposing useless or vexatious defenses, the law contemplates a defense in fact, so far as necessary to protect the rights and interests of the ward. The failure of the guardian in this regard, while forming of itself no sufficient ground of reversal, was a grave irregularity, and undoubtedly led the court into most, if not all, of the errors found in the decree." Stunz et al. v. Stunz, 131 I. 210 (23 N. E. Rep. 407).

HOMESTEAD.

HEBERT V. MAYER ET AL.

(42 La. An. 839.)

Homestead-Alienation of. Held, that if the debtor sell and convey his homestead, his right to have the same exempt from execution ceases, and judgments recorded against the debtor will follow it into the hands of third parties.

MCENERY, J.

Sec. 196. Facts stated.

The plaintiff was the owner of 160 acres of land, with cattle and stock thereon, situated in the parish of Avoyelles. He had his homestead set apart and secured. The defendant was a judgment creditor of the plaintiff. The plaintiff, Hebert, sold thirty (30) arpents of his homestead to one Victor Reynold, who sold the thirty acres to William Hall, and Hall again sold the thirty acres to plaintiff Hebert. After it got back into the possession of Hebert, Mayer, the judgment creditor, seized and advertised it for sale. Hebert obtained an injunction against the defendant, Mayer, restraining him and the