State Ex Rel. Briggs v. Smith

Smith, C. J. In answer to the complaint, containing two counts, one charging a breach of the intestate’s guardian ‘bond and the other seeking to impeach and set aside an alleged settlement of his administration of the trust fund, after the majority and marriage of the relator, the defendant as his administrator relies on the said settlement and a .receipt then given and the bar of the statute of limitations to both claims. The other controverted matters being reserved for the consideration of a jury, should one become .necessary, the parties by consent submit to the co irt to find *307 •tiie facts upon whiek rests the defence under the statute and to determine the law applicable thereto. The facts so found •are as follows-: The defendant’s intestate became guardian to the relator and executed the bond in suit on August 15th, 1863. The •relator arrived at full age in November 1869, and was married on April 14th of the next yean She had the settlement with the intestate and gave him the acknowledgment referred to on May 5th, 1870. The intestate’s final account of administration of his guardianship was returned to the •probate judge-and audited and filed on the day of the settlement with the ward. The guardian died in March 1875, •and this action was begun on March 8th of the following year. Upon these facts the court being of opinion that the •action was barred gave judgment for the defendant and the relator appealed. The cause of action, being the non-payment to the relator of what was due on her arriving at full age, accrued after the adoption of the code of civil procedure and is governed by -the limitations therein prescribed. Sec. 16. If there had been no settlement, the action on the bond is within the six years allowed after the auditing of the final account, by -section 33. But the settlement, admitted to have been made and relied on by the defendant, is an -obstacle in the way of a recovery upon the bond so long as it remains and can be removed only by impeachment for fraud in fact or implied from the fiduciary relation subsisting between the guardian and his ward, as the plaintiff undertakes to da The time within which this may be done is by several adjudications and C. C. P. restricted to the period of three years. Wheeler v. Piper, 3 Jones’ Eq., 249; Whedbee v. Whedbee, 5 Jones’ Eq., 392; Spruill v. Sanderson, 79 N. C., 466; C. C. P., § 34, (9). The settlement however took place after the -relator’s marriage, and the statute does not run against -her because of her «overture. Section 42. *308 While it results from the legal right of a married woman to hold and retain h.er separate estate, as if she were a feme sole and no guardian or trustee is required for its management or protection, that she can receive what is due to her and give effectual acquittance for what is paid,, yet her coverture reserves her right to attack the settlement and the validity of the written discharge for fraud or upon other sufficient legal grounds notwithstanding the lapse of time which bars one under no disability, not because she has not capacity to act in the premises but that her right of action for relief from fraud is not barred. In this respect her position is under the existing law peculiar and anomalous. The case of Wheeler v. Piper is in the argument of Mr. Bailey* correctly distinguished from that before us, in that, the adult husband then became the owner of his wife’s choses in action by reducing them into his possession and he was competent to receive and give a release binding upon both. Hence the delay of three years was a bar to the recovery of the slave and the right to imp.each the deed of conveyance from the feme to her father which obstructed such recovery. But since the adoption of the constitution the wife’s estate remains separate and does not by marriage vest in the husband. She may sue without him when the action relates to her separate property, C. C. P., § 56. And her coverture-affords the same protection against the consequences of the lapse of time as before the recent changes, as declared in. Lippard v. Troutman, 72 N. C., 551. While then in the present aspect of the ease we sustain the ruling of the court as to the count on the bond and the entry of the nol. pros, as to the surety confines the action to. the liability of the. guardian alone, we think the relator may proceed with her second alleged cause of action and that the ruling as to this is erroneous. It is proper we should express our disapproval of the mode of proceeding adopted, whereby instead of a.trial of *309 all the issues and a final disposition of the whole controversy, a part of the issues is separated from the others to be passed on, not decisive' of the result, and the trial has again to be gone over with. All the issues should he settled and points of law ¡reserved with consent, so that the decision may be final. The policy of the code is to secure an early and complete disposition of the cause. This suggestion has been more than once heretofore made, Kirby v. Mills, 78 N. C., 124. There must be a new trial and it is so ordered. Error.. Venire de novo.