¶1The opinion of the court was delivered by
¶2This case seems to have been tried in the court below upon a misapprehension of the issue really involved.
¶3The declaration in the case avers that the defendant, without any lawful right or just cause, or the least color of right, procured from the Probate Court an appointment of himself a& guardian of plaintiff, which said appointment, as the defendant well knew, was wholly illegal and void. It then proceeds to charge certain wrongful acts done by defendant under color of such illegal appointment.
¶4The gist of the action is the wrongful act of the defendant in securing his appointment as guardian, and the allegations of wrong-doing under color of such wrongful appointment, such as compelling the plaintiff’s wife to leave 'him, wrongfully taking possession of the plaintiff’s property, and wrongfully resisting the plaintiff’s attempt to remove the defendant, are mere matters of aggravation of the defendant’s tortious act in securing the guardianship, under which all such wrongful things were done.
¶5The moment, then, that the plaintiff abandoned the charge that the defendant wrongfully procured his appointment as guardian, he practically entered a non-suit. It had the same effect as would follow in an action of trespass guare clausum, where the gist of the action is the breaking and entering, if the plaintiff should abandon the allegation that the defendant broke and entered the plaintiff’s close.
¶6If the plaintiff had not abandoned the charge that the defendant wrongfully procured his own appointment, and on this issue the jury had found for the defendant, the judgment would be for *81the defendant, no matter what they might find respecting the matters alleged by way of aggravation.
¶7The only flaw in the defendant’s title to his office of guardian, charged in the declaration, and therefore the only one open to proof on trial, is the illegal act of the defendant in securing the appointment. In all other respects the declaration, in legal effect, concedes that the appointment was valid. Hence the charge of the court that the defendant was a de facto guardian, was more favorable to the plaintiff than he was entitled to, as the defendant in fact, as the case stood, was a de jure guardian, and so the plaintiff was not injured by the charge.
¶8The court reached a correct result, and as it is the only result that can be reached upon the facts,
¶9The judgment is affirmed.