State Ex Rel. Fountain v. Fountain

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 *220 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. *221 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.