Page:An introduction to Roman-Dutch law.djvu/97

 Rh GUARDIANSHIP 57 In South Africa by the Administration of Estates Act, South 1913, sec. 87, no tutor and no curator (other than a tutor f^gnatlon testamentary or a curator nominate duly authorized ofimmov- thereto by the wiU or deed under which he has been appointed) shall alienate or mortgage any immovable property belonging to a minor unless the Court or, when the Master is satisfied that the immovable property does not exceed three hundred pounds in value, unless the Master authorize the alienation or mortgage of such property. But the Master may authorize the mortgage of immovable property belonging to a miaor to an extent not exceeding three hundred pounds, if satisfied that the mortgage is necessary for the preservation or improvement of the property, or for the payment of expenses necessarily incurred in connexion therewith, or for the maintenance or education of the minor. The same Act by sec. 86 saves the common law as regards the powers and duties of tutors except so far as they are affected by that Act. But it is submitted that in regard to the sale of the ward's property the principle ' Expressio unius est exclusio alterius ' holds, and therefore all that is required of the guardian in alienating his ward's movable property ia that he should exercise a wise discretion and in matters of difficulty seek the guidance of the Court.^ The ward's remedies in respect of unauthorized aliena- Kemediea tion are two: against the tutor and against the aHenee. o"un^au- Against the first he has the actio tutelaedirecta. From the thorized second he may vindicate the property (together with aU tion. fruits, if the defendant's possession is mala fide ; but if it is bona fide together with fruits existing at the date of action 'brought) . If, however, the purchase-money has been received and applied to the m i nor's use, it must be refunded with interest as a condition precedent of the return of the property .^ A sale of immovable property made by a minor without judicial decree and without his guardian's authority caimot be impeached on behalf of In Brit. Gui. a guardian may dispose of valuable movables with- out leave of the Court [G.]. ' Voet, 27. 9. 10.