Jones v. Blanton, 41 N.C. 115, 6 Ired. Eq. 115 (1849)

Aug. 1849 · Supreme Court of North Carolina

41 N.C. 115, 6 Ired. Eq. 115

EDMUND JONES vs. BURWELL BLANTON.

A surety to a guardian bond is not discharged from his liability, by the guardian’s giving a new bond with other sureties.

A surety, who has been compelled to pay the debt of his principal, must make all his co-sureties parties to a bill for contribution, if they are in this State and solvent. But where one is out of the jurisdiction of the Court, and others are within it, the plaintiff, by stating the fact in his bill, is at liberty to proceed against the latter alone.

The co-surety, who is in this State, will have to make contribution, without regard to the share of contribution,'which the absent co-surety would have had to pay, had he been within the reach of the process of our Courts.

A surety to a guardian bond, when sued' by the wards, is not bound to avail himself of the statute of limitations.

All the bonds given by a guardian are but securities for the same tiling, and the sureties on each are bound to contribution, but their liabilities are iu proportion to the amount of their respective bonds.

The cases of Governor v Goman, 3 Ire. 342, Butter v. Durham, 3 Ire. Eq. 389, Spivey v. Jinkins, 1 Ire. Eq. 126, and Jones v. Hayes, 1 Ired. Eq. 542, cited and approved.

Cause transmitted from the Court of Equity, of Cleave-land County, at the Spring Term 1848.

The Bill sets out, that one Benjamin Hieles, in the year 1821, was, by the County Court of Rutherford County, appointed guardian to the minor children, five in number, of Richard Blanton, deceased, and executed five several bonds, one for the benefit of each of his wards, as guardian, and each in the penalty of six hundred dollars, with one Achilles Durham and the defendant, as his sureties ; that, on the 16th of April 1823, the said Hicks renewed his said guardian bonds, by order of the Court, and gave, in their place, one bond in the penalty of three thousand five hundred pounds, with the conditions prescribed by law. To this bond Benjamin D. Durham, Achilles Durham and the plaintiff were sureties. The bill then sets forth, that, in 1S42, a bill was filed in the Court of Equity for Rutherford County, against the sureties to the bond of 1823, in favor of the children of Richard Blanton, and those who represented them or claimed their interest in the estate of the said Richard Blanton, and that a final decree was obtained, at the December term 1845, of the Supreme Court, against the defendants in that suit, for the sum of three thousand and eighty one dollars and four cents, with interest on one thousand six hundred and sixty-six dollars and three cents, from the 1st day of January 1816, together with the costs of suit ; which sum, amounting in the whole to three thousand two hundred and thirty-three dollars, was paid and discharged by the plaintiff, under an execution issued against him and the other sureties. The bill further charges, that Benjamin Hicks removed from this State, before the institution of the above named suit, and died intestate and insolvent; that, before the obtaining of the above decree, Achilles Durham, one of the defendants, became hopelessly insolvent and continues so, and that the said Benjamin D. Durham long since removed from this State to parts unknown, and continues, if alive, to reside abroad. The bill then charges, that the defendant is a co-surety with the plaintiff in the faithful discharge, by the said Benjamin Hicks, of his duties as guardian, and that he is the only one, from whom the plaintiff can receive any contribution ; that the plaintiff, after paying off and dis• charging the decree of the Supreme Court, notified the defendant of the fact, and demanded of him his part or portion of it, which he has refused to pay. It then prays, an account, &c.

The defendant admits, that he executed the five several bonds, first set forth in the plaintiff’s bill. He alieges, that, having become uneasy at his situation, and with a view to become discharged from further liability for Hicks, he applied to him to give other security, which he accordingly did at April sessions 1823 of Rutherford County Court; that upon the records of the same Court is the following entry — “April sessions 1823. The Court took a new bond of Benjamin Hicks, guardian of the heirs of Richard Blanton deceased, in the sum of £3500 with Edmund Jones, Benjamin D. Durham and Achilles Durham, for sureties — done at the request of Burwel Blanton, former surety.” He farther alleges, that tbisproceeding was had by him, with a view to being discharged from his liability for Hicks’ guardianship, and that, at that time, Hicks was amply able to discharge all his liabilities as such guardian, and that he has since become insolvent; that Benjamin D. Durham has removed to, and still resides, in the State of Mississippi, and is a man of wealth, and well able to pay his share of the said decree, tie further alleges, that, at the time the heirs of Burwel Blanton instituted their said suit against the plaintiff, he was protected by the Statute limiting the time, within which wards shall bring their suits against sureties to guardian bonds ; as all or some of them had arrived at the age of twenty one years more than three years before. The defendant admits the decree set forth in the plaintiff’s bill, and its payment by the plaintiff.

Replication was take to the answer.

Guión and Alexander, for the plaintiff.

L. E. Thompson, for the defendants, submitted this argument :

Remedy for surety of guardians — See Rev. Stat. ch. 54, sec. 20.

That a surety need not file a petition to remove a guardian under the above section — sec Rev. Slat. ch. 46, sec. 30, and the case of Governor v. Goioan, 3 Ire. L. Rep. 342.

The sureties oí a guardian are discharged after the ward has been three years of age. See Rev. Stat. ch. 65, sec. 7. Suit on bond must be brought to prevent the statute. See Johnson v. Taylor, 1st Hawks 271.

Where a guardian gives one bond for several wards, each ward has a right of action when he becomes of age. See Rev. Stat. ch. 54, sec. G.

Co sureties on’ different bonds are liable in proportion to their respective bonds. See Jones v. Hayes, 3rd Ire. Eq. 502.

Nash, J.

The defendant’s objection to making contribution is not put on the ground of his not being a party to the bond of 1823, upon which the judgment against ihe plaintiff was obtained, but upon the three following grounds: First, that he was discharged from all liability on the bonds, to which he was a part}', by the judgment of the County Court of Rutherford, when they took the bond of 1S23 ; Secondly, that, as Benjamin D. Durham was one of the obligors in the bond of 1823, with the plaintiff, and is in good circumstances, and amply able to pay his share, it was the duly of the plaintiff to follow him to the State of Mississippi, where he lived, and sue him there ; Thirdly, that more than three years had elapsed, after the wards of Hicks, or some of them, had arrived at the age of twenty one years, before they instituted their suit against the plaintiff, and he was therefore protected by the act of the General Assembly, Rev. St. Ch. G5 Sec. 7, and that he had no right to file this bill.

We do not think that any of these objections can ava 1 the defendant. As to the first, if such discharge by the judgment of the County Court of Rutherford does exist, it must be a matter of record; and, without deciding, whelherthe County Court could or could not so discharge the defendant, it is sufficient to say, the defendant has produced no evidence to support the allegation. The defeii<]ant was not discharged by taking the bond of 1823, but his liability continued, If it did not relieve him to the extent he expected and wished, yet it certainly did relieve him to the extent of binding the sureties to the new bond to contribute to any loss, he might thereafter sustain by reason of his liability; and it has, eventually, thrown upon the plaintiff, one of the sureties to it, the first brunt of the battle. Governor v. Goman, 3 Ire. 342.

As to the second objection. If Benjamin D. Durham had remained in this State and was solvent, it’would have been necessary for the plaintiff to have made him a party, that the Court, in its final decree, might adjust the loss between all the parties. Butler v. Durham. 3 Ire. Eq. 589. But when one of several parties is out of the jurisdiction of the Court, and others are within it, the plaintiff, by stating the fact in his bill, is at liberty to proceed against the latter alone. This is the ordinary practice in the Court of Chancery. Spivey v. Jinkins, 1 Ire. Eq. 126. And the act of 1807, Rev. St. Ch. 113 Sec. 2, expressly authorises one surety to sue another, without making the principal a party, when he is insolvent and out of the State, and the equity of the act applies to this case. It was not necessary, then, for the plaintiff to pursue Benjamin Durham into the State of Mississippi. That burthen will fall upon the defendant, if he wishes to lessen the liability, which, by the decree in this case, will rest upon him. Nor was it necessary to make the administrator of Ilicks a party. Hicks was insolvent and the administrator has left the State.

As to the third objection. If the w'ards of Hicks, as is alleged, had reached twenty one, more than three years before they commenced their suit against the present plaintiff, he might, if he had so chosen, protected himself under the act limiting the time, wfithin which actions must be brought against the sureties to guardian bonds. Rev. St. Ch. 65 Sec. 7. But he did not so choose. A recovery has been had against him upon a just claim, and he now seeks to make the defendant bear an equal share of that just demand. It is right and proper that the law should fix a time, beyond which the sureties to a guardidianbond shall not be held liable to the claim of the wards* and the law has fixed the period at three years after their arrival at full age. The claim here is not that of the ward, but of a joint surety. There was no obligation on the plaintiff, either in law or in equity, to plead that Statute or rely upon the protection it gave him. In the case of Leigh v. Smith, 3 Ire. Eq. 468, and Williams v. Maitland, 1 Ire. Eq. 92 the Court decided, that an executor may or may not, at his option, plead the Statute-of limitations — nor can a legatee compel himtodo it, though, by his neglect or refusal, a liability is thrown on the latter. from which the plea would have protected him. The plaintiff, Jones, was not compelled to plead the Stalute, upon which the defendant relies. The case in 1 Hawks, 271, Johnson v. Taylor, was correctly decided, but that was an action by the wards.

The guardian bonds, to which the defendant was a surety amounted to $3000, and that, on which the plaintiff was surety, amounted to $7000. All the bonds given by a guardian are but securities for the same thing, and the sureties upon each are bound to contribute ; but where the several bonds differ in amount, the liability of the sureties is not equal, but in proportion to the penalties of the different bonds. In this case, the sum, for which the defendant, Blanton, is liable, when compared to that, which the plaintiff ought to pay, of the sum decreed against him, is as $3000 is to $7000, and so it must be declared, Jones v. Mayes, 3 Ire. Eq. 502.

Per Curiam.

Decree accordingly,