Executors of Johnson v. Taylor, 8 N.C. 271, 1 Hawks 271 (1821)

June 1821 · Supreme Court of North Carolina

8 N.C. 271, 1 Hawks 271

Executors of Johnson v. Taylor and the adm’r of Dew.

From Edgecombe.

The proper construction of the act of 1795, ch. 15, is, that it is incumbent on an infant, after arriving at full age, not only to “ call on his guardian for a full settlement,55 but to have a final adjustment of all accounts, matters and things, with his guardian, within three years; and either sue for any balance which may be due him, or notify the securities to the guardian bond of the situation in which he stands to the guardian. Without such conduct on the part of the infant, llie securities are discharged.

Tins 'was an action of 'debt brought on a guardian bond against Taylor, the principal^ and the administrator of Dew, a deceased security. The breach assigned, was the non-payment by the principal to the ward, upon his arrival at age, of the estate to which he was entitled. Among other pleas put in by the administrator of Dew, were the following: first, that his intestate had been dead more than seven years before claim made by the ward ", and secondly, that the ward had not, within three years after coming of age, called on the guardian for a full settlement of his guardianship.. To these pleas there were replications and issues thereon. The ward came of age in' October, 1814, and this suit was insti-tilted on the 26th of August, 1818. Dew died, and administration was granted on his estate in 1806. In September, 1817", Taylor, the guardian, made payments to the ward on demands made on him as guardian by the ward.

Upon the charge of the Court below, the Jury found a verdict against the administrator on both pleas, and a motion for a new trial having been overruled, and judgment rendered against the administrator, he appealed to this Court.

Gaston for the appellant,

commented on the acts of 1715, ch. 48, and of 1795, ch. 15, on which these pleas were founded. He contended, that as to the act of 1795, the words and spirit of it require that within three years after the ward’s arrival at age, lie shall have exacted a complete liquidation of the accounts between him and his guardian, or at all events shall have done what was in his power to effect it; that the phrase “ to call on a guardian for a full settlement,” used in the act, was not at all ambiguous ; it was perfectly understood, and was tie. universal language in filing a petition or bill to account. The term “ full” settlement must mean a final adjustment. The spirit of the act is to exonerate securities from liability beyond the amount ascertained within the time prescribed in the act; because, during that time, the matters are recent, vouchers may be produced, witnesses are alive, and therefore orphans shall not, as against securities, postpone the adjustment; they may trust the guardian if they choose, but if they do, they trust him only.

As to the act of 1715, he referred to the case of M’Leh lan, v. Eill, (Conf. Rep. 479,)

JIordecai for the appellee

1st. Suits brought to this Court must be governed by the rules prescribed for bringing writs of error, there being no trial of the facts in tiiis Court. Now in a writ of error, all Ike persons against whom judgment is given, must join. Waller v. Stohoe, (1 Ld. Hay. 71,) Bouse y. Etherington, (2 Ld. Ray. 870) Ginger v. Cowper, et al. (2 Ibid. 1403.) And all must join, though the error should be only as to one of,several Defendants, (Styles 406, Bacon “ Error” B.J Laroche v. Wasbrough and Mailand, (2 Term R. 737.) YThis appeal therefore is improperly brought up by our Defendant. But if this. Court will sustain the suit, then, 2dly, the Legislature did not intend by the act of 1795, to bar suits in three years. Whenever they have meant that actions should be barred by the statutes of limitation passed at various times, they have said in the act tiiat suit shall not be brought. (Vide acts of 1715, ch. 27,1808, ch. 8, 1810, ch. 18.) So when they intended to bar suits on bonds after they should be negotiated, they say the statute of limitation shall apply to them, (1786, ch. 4.) The phrase, “ call for a settlement,” must be construed in its ordinary1 and no man would understand it to mean. nor did the Legislature mean that sureties'^) 5 guard bond should be absolutely discharged unless suit was brought within that time#Fiad they intended, they would have said so c:-s^vessl

Hah Judge.

The policy of the act of 1795, undoubtedly, is to lighten the burthen of securities and free them from stale demands, when a remedy might have been had if promptly prosecuted against the real debtor.

The intent of the Legislature would not be effectuated if the injunction upon the creditor to call for a full settlement meant a mere call for such a settlement and nothing more. If that is the case, such call, and a total disregard of it by the guardian within three years after the infant’s arrival at full age, would leave the securities in the same situation in which they were before the passage of the act.

I think it is incumbent on the infant, after arriving at full age, not only to call for a full settlement, but to have a final adjustment of all accounts, matters and things, with his guardian, within three years •, and either sue for any balance that may be due him, or notify the securities to the guardian bond of the true situation in which he stands to the guardian. In the latter case, the securities, if they apprehend any danger from their securityship, may, by legal process, compel a speedy adjustment of accounts between the creditor and debtor, so as not to be injured by any future and distant call that may be made on them for the insolvency of their principal. Nothing short of such conduct towards the securities will, in my opinion, satisfy the act of 1795, ch. 15, on which the Defendant rests his defence ; and. as such has not been observed, I think a new trial should be granted.

Tatxor,''Chief-Justice, and Henderson, Judge, concurred.