State Ex Rel. Copley v. Scarlett

Pee Curiam. Tbe defendant was a surety on tbe bond of Charles Scarlett, guardian of Hilda Copley. N. C. Code, 1935 (Micbie), Art. 5, sec. 436, is as follows: “Tbe periods prescribed for tbe commencement of actions, other than for tbe recovery of real property, are as set forth in tbis article. Section 441: “Within three years an action . . . (6) Against tbe sureties of any executor, administrator, collector or guardian on tbe official bond of their principal; within three years after tbe breach thereof complained of.” Section 2188: “A guardian may be required to file such account at any time after six months from tbe ward’s coming of full age or tbe cessation of tbe guardianship; but such account may be filed voluntarily at any time, and, whether tbe accounting be voluntary or compulsory, it shall be audited and recorded by tbe clerk of tbe Superior Court.” In Finn v. Fountain, 205 N. C., 217 (220), it is written: “Tbe 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 case, 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 the bond at said date, and continued to run for more than three years and six months before the action was *34 begun. The running of the statute as against the plaintiffs and in favor of the sureties was not suspended by the payment of interest by the guardian on the amount due by him to each of the plaintiffs. The liability of the sureties on the bond is a conditional liability, dependent upon the failure of the guardian to pay the damages caused by his breach of the bond. The guardian and the sureties are not in the same class. For that reason the payment by the guardian of interest on the amount due by him to his former wards did not suspend the statute of limitations, which began to run against each of his wards when she became twenty-one years of age.” The plaintiff contends: “If not overruled, the doctrine of the Finn case, supra, should be limited to payments of interest and not extended to cases involving payments of principal.” We cannot so hold, as we cannot differentiate. The judgment of the court below is Affirmed.