State ex rel. Fountain v. Fountain, 205 N.C. 217 (1933)

Oct. 11, 1933 · Supreme Court of North Carolina

205 N.C. 217

STATE OF NORTH CAROLINA on the Relation of MABEL FOUNTAIN FINN, ERMA FOUNTAIN ANDERSON, REGINALD FOUNTAIN, and REGINALD FOUNTAIN, Guardian of L. H. FOUNTAIN v. JEFFERSON L. FOUNTAIN, Jr., and THEODORE K. FOUNTAIN, Executor of J. L. FOUNTAIN, Deceased, JEFFERSON L. FOUNTAIN, Jr., and THEODORE K. FOUNTAIN, Trustees Under the Will of J. L. FOUNTAIN, Deceased, MARY KING FOUNTAIN, and RURIK G. GAMMON, Administrator of THEODORE FOUNTAIN, Deceased.

(Filed 11 October, 1933.)

1. Limitation of Actions O a — Guardian’s payment of interest on sum due ward after majority does not affect bar of statute as to sureties.

The liability of a surety on a guardianship bond is dependent upon the guardian's failure to pay damages caused by breach of the bond, and an action is barred as to the sureties in three years from the accrual of a cause of action for breach of the bond, O. S., 441(6), and an action for breach of the bond based upon the guardian’s failure to pay the ward the balance of the estate due the ward within six months after the ward attains his majority is barred as to the sureties after three years from the date the guardian should have made payment, O. S., 2188, and the fact that the guardian continued to pay the ward interest on the amount due the ward for several years after the ward’s majority does not affect the running of the statute as to the sureties.

2. Limitation of Actions B a — Action against guardian for failure to pay balance due ward is barred after six years from final account.

An action against a guardian for failure to pay tbe ward tbe balance of tbe estate due tbe ward after tbe ward bas attained bis majority is not barred by tbe six-year statute of limitations where tbe guardian bas not filed a final account, C. S., 439(2), tbe statute not applying to such action.

Appeal by the plaintiffs, Mabel Fountain Finn and Erma Fountain Anderson, from Daniels, J., at April Term, 1933, of Edgecombe.

Modified and affirmed.

Tbis is an action to recover of tbe defendants on a guardian bond. Tbe bond is dated 25 February, 1919, and was executed by Theodore Fountain, as guardian of Mabel B. Fountain (now Finn), Erma Fountain Anderson, Reginald Fountain, and L. H. Fountain, each of whom was under tbe age of twenty-one- years at tbe date of tbe execution of tbe bond, and by J. L. Fountain and Y. E. Fountain, as sureties. Tbe action was begun on 2 December, 1931.

Tbe guardian, Theodore Fountain, died intestate during tbe month of August, 1931; tbe defendant, Rurik Gr. Gammon, bas been duly appointed and bas duly qualified as administrator of tbe said Theodore Fountain, deceased.

Tbe surety, J. L. Fountain, died during tbe year 1927, leaving a last will and testament which bas been duly probated and recorded; tbe defendants, Jefferson L. Fountain, Jr., and Theodore K. Fountain, are tbe executors of tbe said J. L. Fountain, deceased, and are also trustees named in bis will. Tbe defendant, Mary King Fountain, is tbe widow of J. L. Fountain, deceased, and is a devisee and beneficiary named in bis will.

Tbe surety, Y. E. Fountain, was adjudged a bankrupt in a bankruptcy proceeding instituted in tbe United States District Court for tbe Eastern District of North Carolina on 14 December, 1926, and was discharged from liability on tbe bond sued on in tbis action by an order and decree of said Court on 3 October, 1927.

At tbe trial of tbe action, it was ordered and adjudged by tbe Court that tbe plaintiff, Reginald Fountain, recover of tbe defendants other than Y. E. Fountain, in bis own behalf, tbe sum of $3,000.00, and as guardian of L. H. Fountain, tbe sum of $4,000.00, these being tbe amounts in which tbe jury found that said defendants are indebted to tbe said plaintiffs, respectively. There was no exception to or appeal from said judgment.

It was admitted at tbe trial that tbe plaintiff, Mabel Fountain Finn, became of tbe age of twenty-one years during tbe year 1924 and that tbe plaintiff, Erma Fountain Anderson, became of tbe age of twenty-one years during tbe year 1921.

The evidence at tbe trial showed that Theodore Fountain as guardian of Mabel Fountain Finn filed in the office of the clerk of the Superior Court of Edgecombe County on 13 March, 1924, his annual account as such guardian, showing that the sum due by him as her guardian at said date was $3,131.15. This annual account was duly audited and approved by the clerk of the Superior Court. No final or other account was thereafter filed by the said Theodore Fountain as guardian of the plaintiff, Mabel Fountain Finn.

The evidence at the trial also showed that Theodore Fountain as guardian of Erma Fountain Anderson filed in the office of the clerk of the Superior Court of Edgecombe County on 17 August, 1920, his annual account as such guardian, showing that the sum due by him as her guardian at said date was $2,993.99. This annual account was duly audited and approved by the clerk of the Superior Court. No final or other account was thereafter filed by the said Theodore Fountain as guardian of the plaintiff, Erma Fountain Anderson.

There was evidence at the trial tending to show that after the plaintiff, Mabel Fountain Finn, and the plaintiff, Erma Fountain Anderson, each became of the age of twenty-one years, and until the year 1930, Theodore Fountain paid to each of them, annually, the interest on the amount due her by him.

The court was of opinion that upon the facts admitted at the trial, the action wras barred by the statute of limitations as to the plaintiff, Mabel Fountain Finn, and also as to the plaintiff, Erma Fountain Anderson, as against both the guardian and the sureties on his official bond, and therefore adjudged that the action be and the same was dismissed as to these plaintiffs.

From the judgment dismissing the action as to them, the plaintiffs, Mabel Fountain Finn and Erma Fountain Anderson appealed to the Supreme Court.

H. H. Philips for plaintiffs.

Ruarle & Ruarle for defendants, Jefferson L. Fountain and Theodore K. Fountain, executors and trustees of J. L. Fountain, deceased.

CONNOR, J.

This is an action to recover on the official bond of a guardian. The court was of opinion that on the facts admitted at the trial the action is barred by the statute of limitations as against both the guardian and the sureties on his bond. In accordance with this opinion, the action was dismissed, and the plaintiffs appealed to this Court. The only assignment of error on the appeal is based upon the exception to the judgment.

The guardian and one of the sureties on his bond had died before the commencement of the action. The other surety, who was made a party defendant after tbe action was begun, bad been adjudged a bankrupt, and bad been duly discharged from liability on tbe bond. Tbe action was prosecuted on bebalf of tbe appealing plaintiffs against tbe administrator of tbe deceased guardian, and tbe executors of tbe deceased surety. Tbe guardian bad failed to pay to either of tbe plaintiffs tbe amount due her by him as guardian when she became of tbe age of twenty-one years, or within six months thereafter. This is tbe breach of tbe bond complained of as tbe cause of action alleged in tbe complaint.

At tbe date of the commencement of tbe action more than three years bad elapsed since tbe plaintiffs, Mabel Fountain Finn, and Erma Fountain Anderson, bad become of tbe age of twenty-one years. As to these plaintiffs, tbe action is, therefore, barred by tbe statute of limitations as against tbe defendants, executors of tbe deceased surety. C. S., 441(6), Self v. Shugart, 135 N. C., 185, 45 S. E., 484; Anderson v. Fidelity Co., 174 N. C., 417, 93 S. E., 948, unless as contended by tbe plaintiffs, tbe payment by tbe guardian of interest on tbe amount due'by him to each of tbe plaintiffs, each year after she became of tbe age of twenty-one years until tbe year 1930, suspended tbe statute of limitations as to tbe sureties on bis official bond.

The period prescribed by tbe statute within which an action against tbe sureties on tbe official bond of a guardian must be begun is three years after tbe breach complained of as tbe cause of action alleged in tbe complaint. C. S., 441(6). In tbe instant ease, tbe cause of action alleged in tbe complaint accrued at tbe expiration of six months from tbe date when tbe plaintiffs, respectively, arrived at tbe age of twenty-one years. C. S., 2188. Tbe statute of limitations began to run against each of tbe plaintiffs and in favor of tbe sureties on tbe bond at said date, and continued to run for more than three years and six months before tbe action was begun. Tbe running of tbe statute as against tbe plaintiffs and in favor of tbe sureties was not suspended by tbe payment of interest by tbe guardian on tbe amount due by him to each of tbe plaintiffs. Tbe liability of tbe sureties on tbe bond is a conditional liability, dependent upon tbe failure of tbe guardian to pay tbe damages caused by bis breach of tbe bond. Tbe guardian and tbe sureties are not in tbe same class. For that reason tbe payment by tbe guardian of interest on tbe amount due by him to bis former wards did not suspend tbe statute of limitations which began to run against each of bis wards, when she became twenty-one years of age. Barber v. Asher Co., 175 N. C., 602, 96 S. E., 43; Wood v. Barber, 90 N. C., 76. There was no error in dismissing tbe action as to tbe defendants, tbe executors of tbe deceased surety. As against them, tbe action is barred by tbe statute of limitations.

As against the guardian, the statute of limitations began to run at the expiration of six months from the date when the plaintiffs respectively became of the age of twenty-one years. As the guardian failed to file a final account within six months after his wards became of age, the six-year statute of limitations (C. S., 439(2) has no application to this action. For this reason there was error in the judgment dismissing the action as to the administrator of the deceased guardian on the ground that the action is barred as against the said administrator by the six-year statute of limitations. The judgment as modified in accordance with this opinion is

Affirmed.