State Ex Rel. Cheshire v. Howard

CoNNOR, J. On tbeir appeal to tbis Court, tbe defendants M. G. Jones and A. M. Moore contend: 1. Tbat there was error in tbe finding by Judge Grady tbat tbe defendant Irma E. Howard qualified as guardian of Frank Briggs Howard before tbe clerk of tbe Superior Court of Wake County on 11 February, 1925, for tbat it appears from tbe record in tbe proceeding entitled, “In tbe matter of Frank Briggs Howard, a minor,” tbat tbe said defendant did not, before tbe commencement of tbis action, sign either tbe application for her appointment as such guardian or tbe oath appearing in said record; 2. Tbat there was error in tbe bolding by Judge Grady tbat tbe defendants M. G. Jones and A. M. Moore, who signed tbe bond sued on in tbis action as sureties, are liable on said bond, notwithstanding tbe failure of tbe defendant Irma E. Howard, who is named in said bond as principal, to sign tbe same; 3. Tbat there was error in tbe bolding by Judge Grady tbat tbe facts alleged in tbe answers filed by tbe defendants M. G. Jones and A. M. Moore are not sufficient to constitute a defense to tbis action, and tbat for tbat reason evidence tending to support tbe said allegations was irrelevant. Tbe allegations in tbe answers are to tbe effect tbat each of said defendants signed tbe bond sued on in tbis action as surety on tbe assurance tbat tbe defendant Irma E. Howard would sign tbe same as principal, and tbat said bond would not be effective as to said defendants, or either of them, unless and until tbe said Irma E. Howard bad signed tbe same as principal. Each of these contentions is presented to tbis Court by assignments of error duly made by appellants on tbis appeal. Neither of them can be sustained. 1. Tbe first contention cannot be sustained because all tbe evidence on tbe bearing before Judge Grady shows tbat tbe defendant Irma E. Howard was appointed by tbe clerk of tbe Superior Court of Wake County, upon her application, as guardian of Frank Briggs Howard, her infant son, on 11 February, 1925, and tbat after such appointment *570 and pursuant thereto, she received the sum of $2,333.33 as guardian of the said Frank Briggs Howard, and undertook to perform her duties as such guardian. Prior to her appointment, she had filed the bond sued on in this action. This bond is signed by the defendants M. Gf. Jones and A. M. Moore, as sureties, and is duly recorded in the office of the clerk of the Superior Court of Wake County. She does not deny the validity of her appointment, or her liability as guardian of her ward. She has not appealed either from the judgment against her by default and inquiry or from the judgment that plaintiff recover of her as principal in the bond the sum of $2,333.33, with interest and costs. Neither of the appealing defendants can challenge in this action the validity of the appointment or qualification of the defendant Irma R. Howard as guardian of Frank Briggs Howard, or deny her liability for her breach of the bond sued on in this action. The failure of the clerk of the Superior Court of Wake County to require the defendant Irma R. Howard to sign the application for her appointment as guardian, or to sign the oath appearing in the record, is an irregularity, for which no excuse or explanation appears in the record; such irregularity, however, does not render the appointment void as against the defendant Irma R. Howard, or as against the defendants M. G-. Jones and A. M. Moore. The bond contains a recital to the effect that the defendant Irma R. Howard had been appointed by the clerk of the Superior Court of Wake County as guardian of Frank Briggs Howard, a minor. This recital is conclusive on the defendants M. G. Jones and A. M. Moore. They are estopped by the recital in the bond which they signed as sureties from denying in this action the validity of the appointment or qualification of their principal as guardian of her ward. State ex rel. Barnes v. Lewis, 73 N. C., 138. In that case it was held that the defendant was estopped by the recital in the bond which he had signed as surety to deny that the principal in the bond had been rightfully appointed as guardian. 2. The second contention cannot be sustained because there is no statute in this State which requires a guardian of an infant, who has been appointed by a court of competent jurisdiction to sign the bond which such guardian is required by statute to file with the court before he is permitted to receive property belonging to the estate of his ward. It is provided by statute that “every guardian of. an estate, before letters of appointment are issued to him, must give bond payable to the State, with two or more sufficient sureties, to be acknowledged before and approved by the clerk of the Superior - Court, and to be jointly and severally bound.” C. S., 2162. Such bond must be recorded in the office of the clerk of the Superior Court by which the guardian was appointed. C. S., 2163. *571 Tbe bond in tbe instant case was signed by tbe defendants M. G. Jones and A. M. Moore, and acknowledged by tbem before tbe clerk of tbe Superior Court of Wake County. It was duly recorded in tbe office of said clerk. Tbe bond was executed by tbe sureties and recorded by tbe clerk in strict compliance witb tbe statute. Undoubtedly, tbe statute contemplates that tbe bond shall be signed and acknowledged by tbe guardian as principal, as well as by tbe sureties. Tbe acceptance and approval of tbe bond by tbe clerk of tbe Superior Court without tbe signature of tbe guardian as principal is an irregularity, but such irregularity does not render tbe bond void either as to tbe principal or as to bis sureties. Both tbe guardian and tbe sureties are bound — the guardian because be has filed tbe bond witb tbe court, tbe sureties because they have signed tbe bond. See Comrs. v. Inman, 203 N. C., 542, 166 S. E., 519; S. v. Bradsher, 189 N. C., 401, 127 S. E., 349. Tbe law applicable to this contention, as settled by judicial decisions, is stated in Stearns on tbe Law of Suretyship (4th Ed.), paragraph 149, as follows: “Tbe omission of tbe name of tbe principal as one of tbe signers of an official bond, even where bis name appears in tbe body of tbe instrument as an obligor, is a mere technical defect and will not release tbe surety, except in those cases where tbe surety signs upon condition, known to tbe obligee, that tbe bond is not to take effect until signed by tbe principal. Tbe sureties are not injured by tbe failure of tbe principal to sign; if they are compelled to pay tbe penalty of tbe bond because of tbe default of tbe principal, they can recover tbe amount back from tbe principal whether be signed tbe bond or not. When tbe bond is accepted and approved without tbe signature of tbe principal, and tbe latter enters upon bis office by reason of tbe reliance of tbe obligee upon tbe bond, it would be giving tbe sureties tbe benefit of tbe contract without imposing its burdens to permit tbem to escape liability.” This statement of tbe law is fully supported by tbe decisions cited in tbe notes. 3. Tbe third contention cannot be sustained because it is not alleged in tbe answers by whom tbe assurance on which tbe defendants relied was given. It is not alleged that -the clerk of tbe court gave tbe assurance, or that be was informed that tbe sureties bad signed tbe bond conditionally. Even if it bad been so alleged, it is doubtful whether tbe clerk of tbe court, who was required to approve and who did approve tbe bond, bad tbe power to accept tbe bond conditionally. See S. v. Bradsher, supra. It is significant that in this case tbe appointment of tbe guardian was made on tbe same day that tbe bond was signed by tbe appealing defendants. *572 It is said in tbe brief filed in this Court for tbe appellants that tbis is a bard case. So it is. It is bard for tbe defendants to be called upon to answer for tbe default of tbe guardian, wbo is tbe mother of ber ward. It would be equally as bard, however, if tbe ward should lose tbe money which was paid to bis guardian to compensate him, in some measure, for tbe death of bis father. Tbe defendants voluntarily assumed liability for such loss as should result from tbe default of tbe guardian and cannot justly complain that tbe law now requires them to discharge their liability. There was no evidence tending to show that tbe sureties in tbis case were prejudiced by tbe irregularities appearing in tbe record. For that reason, tbe irregularities are immaterial. "We find no error in tbe judgment. It is Affirmed.