Sikes v. Truitt, 57 N.C. 361, 4 Jones Eq. 361 (1859)

June 1859 · Supreme Court of North Carolina

57 N.C. 361, 4 Jones Eq. 361

MARTHA E. SIKES against SAMUEL A. TRUITT and others.

Where there is a demurrer to the whole of a bill, if it appears that the plaintiff is entitled to any relief, the demurrer must be overruled.

A defect in a guardian bond, arising from the mistake or ignorance of the clerk, will be aided in this Court, as against sureties. (Armisiead v. Boa-man., 1 Ired. Eq. 117, cited and approved.)

Appeal from the Court of Equity, of Tyrrel County.

The plaintiff is an infant, and the defendant Truitt was once her guardian, and on his resignation, the defendant Sikes was appointed, and he was afterwards removed, and another appointed. The bill is against Truitt, Sikes, and the persons who were the sureties in the respective bonds of the guardians, or the representatives of such of them as are dead. It states that Truitt received a considerable estate as the plaintiff’s guardian, and held money, bonds and other securities therefor: that Sikes was largely indebted to Truitt, and in failing circumstances, and that, with the view of saving his own debts, Truitt gave up the guardianship, and procured Sikes to be appointed upon an agreement between them, that Truitt might retain the effects of the plaintiff as his own, and in the place thereof, deliver over to Sikes the notes of Sikes to Truitt, founded on their private dealings; and that, accordingly, upon the appointment of Sikes, he and Truitt came to a settlement of Truitt’s account as guardian, and b)r way of pretended discharge of the balance due the plaintiff, Truitt passed to Sikes the latter’s own notes, or debts, and Sikes executed to Truitt a release or receipt in full; that Truitt was fully informed, at the time, of the embarrassment and insolvency of Sikes, who shortly afterwards, executed a general assignment of his estate to some of his creditors, and that the sureties to the guardian bond given by Sikes, were also insufficient, and shortly became insolvent.

The bill further states that Frederick Patrick, and Ashbel Livennan, were offered and accepted by the Court as the sureties of Truitt, and executed the bond with him in the sum of $5000, and exhibits a copy of it in this form ¡

“'Know all men by these presents, that we, Samuel A. Truitt, Frederick Patrick, and Ashbel Livennan, are held and firmly bound to the State of North Carolina, in the sum, &c., to be paid to his Excellency, the Governor, his successors, &c., to the which payment, &c.,” with the usual conditions of guardian bonds.

The bill states that this bond was executed in the form it bears, by reason that the clerk of the County Court used forms which had been printed while guardian bonds were payable to the Governor, and, after the act passed, which requires them to be made payable to the State, the clerk usually struck out the name of the Governor, and inserted the State; and that through ignorance, inadvertence, or mistake of the clerk, that was omitted in this instance, but that it was the purpose of the Court to require a bond according to the law, and the intention of the obligors to give, and their belief that they were giving a proper and sufficient guai*dian bond, and that all the parties were mistaken with respect to the form of the bond that was executed.

The prayer of the bill is for an account of the plaintiff’s estate which came, or ought to have come, to the hands of the several guardians, and that Truitt may be held liable to the plaintiff, notwithstanding any such colorable or fraudulent settlement between him and Sikes, or any release or acquittance founded thereon, and that the bond given by Truitt, Patrick, and Liverman, may be set up and enforced in the Court, and that the several sureties on the bonds of the guardians may be held liable to the plaintiff for the defaults of their respective principals, and for general relief.

The defendants put in a joint demurrer, which was overruled, and they appealed to this Court.

Winston, Jr., for the plaintiff.

Sines and S. W. Jones, for the defendants.

Eukfin, J.

The demurrer is to the whole bill, and consequently it must be over-ruled, if the plaintiff is entitled to any relief. It is clear that she is. Against Sikes, it is the common bill of a ward, calling a guardian to account. It is the same with respect to Truitt, with the addition that it supposes him to rely on a discharge founded on a settlement between him and Sikes as the subsequent guardian, and impeaches that settlement and discharge, upon the ground, that Sikes was insolvent, and that payment was made to him in his own debts, which he owed to Truitt on their private dealings, upon an arrangement between them, with a view to save Trujtt from loss, and throw it on the plaintiff. The bad faith of such a transaction, would certainly leave Truitt still liable for the debt he owed his ward. Each of these is a sufficient ground to sustain the bill against those defendants. The bill states as another ground for relief: a supposed legal defect in the first guardian bond, and it was against that position alone, the argument for the defendant was directed. For the reasons already given, that point need not be considered, since the demurrer is necessarily over-ruled, as being too broad. But the Court thinks it would be improper to leave it in doubt; for, however the law was, before the case of Armistead v. Bozman, 1 Ired. Eq. 117, the principle was there settled that a defect in a guardian bond, arising from the mistake, or ignorance of the clerk, will be aided in this Court, as against the sureties. However much opinions may have differed at the time, on that position, and I own I was among those who were not satisfied with it, the certainty of the lawj as depending upon judicial decisions, is of too much importance to allow its authority to be questioned at this day.

There is no error in the decretal order of the Court of Equity, and it must stand.

Per Curiam, Order helow affirmed.