Tyson v. Sanderson

PETERS, J. The assignment of error founded on the exception made to the master’s report, is not well taken. The ground for the exception is, “that the register, in said report, has charged defendant, T. B. McCall, with compound interest on the balance found due from W. D. Simonton to complainant’s intestate, on the 22d day of April, 1862, when the defendant, T. B. McCall, should not be charged with but simple interest on such sum.” This exception is not sustained by the record. McCall was the security on the bond of Simonton, the guardian. From the guardian’s partial settlement, on the 22d day of April, 1862, the decree of the probate court against him for the funds of the ward then found to be in the guardian’s hands, was for seven hundred and thirty dollars. The report of the master shows that the interest charged on this sum was “ annual interest ” at eight per cent, per annum, which amounted to four hundred and twenty-one dollars and fourteen cents. This was not above the sum due at simple interest; and such decrees bear simple interest, as here charged. Then, there was no error in refusing to allow this exception. — Rev. Code, § 1829; Kyle v. Mays, use, &c., 22 Ala. 692. There is no law of this State requiring a guardian to pay compound interest on the moneys of the ward in his hands, unless he collects such interest on the ward’s funds. The statute only makes it obligatory on him to loan out the ward’s moneys and collect the interest annually, and to compound the interest on all debts due the guardian by note or account, contracted since February 24, 1860. Rev. Code, §§ 2426, 2427; Brant v. Abbott, 42 Ala. 499. And though the order for the taking of the account authorized the master to charge either simple or compound interest, yet as simple interest only was charged, the order going beyond this was error without injury, and it is not reversible. — Hawkins, Adm’r v. Dumas, 41 Ala. 391; Shep. Dig. p. 568, § 82. [369] The assignments of error also impeach the sufficiency of the final decree of the chancellor in the court below. The pleadings show that this is a proceeding to enforce the liability of a surety on a guardian’s bond for the guardian’s default. The penalty stipulated in the bond is twelve hundred dollars. A suit at law on this bond would necessarily confine the recovery to this sum and interest thereon, after the liability of the surety was fixed and ascertained. It would be an action of debt on the bond, and interest on the debt after it fell due. — Eev. Code, §§ 2770, 2771; Hurl-some on Bonds, 107, and cases cited; 7 Bae. Abr. Bouv. 239, and cases cited; 1 Chitt. Pl. 108, 100, 115, marg; Post Master General v. Cochran, 2 John. 413 ; Eev. Code, p. 674, 675, Forms. Or, if the proceedings were in the probate court, then fixing the liability against the guardian would also fix it against the surety. — Eev. Code, §§ 2281, 2281. The surety could not be reasonably required to answer for the principal’s default} until the amount of the default should be ascertained. This is the principle adopted in the court of probate and in the circuit court. It is just and right, and should be followed in the court of chancery. Eev. Code, §§ 2281, 2272. If, on the other hand, it is contended that the liability is fixed by the partial settlement in 1862, were it not for the interposition of the late war, the surety would be discharged by the statute of limitation in his favor. — Eev. Code, § 2901; Coleman v Holmes, January Term, 1870. Here the suit is against the representative of the principal and the surety at the same time, and the sum ascertained against the guardian fixes the liability of the surety. Both are shown by the same decree. This is the ascertained commencement of the surety’s indebtedness, wdiich he is liable to pay, and the bond itself limits its amount. It would be unjust to him to demand interest before this is done; because it is the ascertainment of this fact which shows that he owes anything at all. — Hill v. Rushing, 4 Ala. 212 ; Commonwealth v. Forney, 3 Watts & Serg. 353; Herndon v. Forney, 4 Ala. 243. Here, the decree against the surety, McCall, speeds the amount of the penalty of the bond. In this thjre is error. The more regular practice requires that there shall be a [370] decree disposing of the case against each of the defendants. And in this case there should have been a decree in favor of the complainant against the representative of the guardian, for the whole balance found to be remaining in the guardian’s hands on taking the account by the register, and a like decree against the representative of Mushat, deceased, the co-surety of McCall on the guardian’s bond, for the amount of the penalty of the bond, to be levied of their respective goods and chattels remaining to be administered; and these decrees might be filed against the insolvent estates of the parties, as allowed by the statute. — Rev. Code, §§ 2208, 2209. And, besides, a decree should be rendered against McCall in favor of the complainant, for the amount of the penalty of the guardian’s bond, and interest thereon from the date of such decree, and costs. — Revised Code, § 1829 ; 18 N. Y. 35. The judgment of the court below is reversed, and the cause remanded. The appellee, Sanderson, as the administrator of the estate of said B. F. McDonald, deceased, will pay the costs of this appeal in this court and in the court below, out of the assets of the said McDonald in his hands to be administered.