Gronna v. Goldammer

Beuoe, J. (after stating the facts as above). It appears to be the general rule and to be conceded by both parties that “payment by one of the cosureties after the claim against him has been barred by the statute of limitations is voluntary, and does not entitle him to contribution from the other cosureties.” 32 Cyc. 282; Cocke v. Hoffman, 5 Lea, 105, 40 Am. Rep. 23; Shelton v. Farmer, 9 Bush, 314; Cochran v. Walker, 82 Ky. 220, 56 Am. Rep. 891; Letcher v. Yantis, 3 Dana, 160; Wheatfield Twp. v. Brush Valley Twp. 25 Pa. 112; Bell v. Morrison, 1 Pet. 351, 7 L. ed. 174; Turner v. Thom, 89 Va. 745, 17 S. E. 323; Van Keuren v. Parmelee, 2 N. Y. 528, 51 Am. Dec. 322. Sec — 127 — tion 8284 of tbe Revised Codes of 1905 provides, among other things, that “no action can be maintained against the sureties on any bond given by a guardian, unless commenced within three years from the discharge or removal of the guardian.” The question for determination is: Did the coming of age or the marriage of the ward, ipso facto, work a removal or discharge of the guardian so as to' put the statute of limitations in motion? The pertinent provisions of the Code of North Dakota upon the subject are as follows: “Sec. 4139. The power of a guardian appointed by a court is suspended only: (1) By order of the court; or (2) if the appointment was made solely because of the ward’s minority, by his attaining majority; or (3) the guardianship over the person of the ward, by the marriage of the ward.” “Sec. 4140. After the ward has come to his majority he may settle accounts with his guardian and give him a release, which is valid if obtained fairly and without undue influence.” “Sec. 4141. A guardian appointed by a court is not entitled to his discharge until one year after the ward’s majority.” “Sec. 8067. An executor, administrator, or guardian may at any time present to the county court a petition praying that his account may be settled, and that a decree may thereupon be made revoking his letters and discharging him accordingly. The petitioner must set forth the facts upon which the application is founded; but the application shall not be entertained while a proceeding is pending for the removal of the executor, administrator, or guardian, or if in the opinion of the judge there is good cause for his removal or other sufficient cause for refusing to entertain the same.” “Sec. 8068. If the court entertains such application, a citation must issue to all parties interested in the estate. At the hearing any creditor or other person interested may allege cause for denying the application, or allege cause for his removal and pray relief accordingly. Upon a trial of the issue, if the court determines that sufficient cause exists for granting the application the petitioner must be allowed to account ; and after he has fully accounted and paid over all money which is found to be due from him to the estate, and delivered over all books, papers, and other property of the estate in his hands as the court directs, — 128 — a decree shall be made, discharging him and revoking his letters, otherwise such decree shall be made as justice requires.” “Sec. 8242. Every guardian so appointed shall have the custody and care of the education of the minor, and the care and management of his estate until such minor arrives at the age of minority, or marries, or until the guardian is legally discharged.” “Sec. 8282. The marriage of a minor ward terminates the guardianship ; and the guardian of an insane or other person may be discharged by the judge of the county court when it appears to him, on the application of the ward or otherwise, that the guardianship is no longer necessary.” “Sec. 8063. A petition alleging the facts, and praying for the removal of an executor, administrator, or guardian pursuant to the provisions of the preceding section, may be presented by a creditor or other person interested in the estate, and may contain a prayer for the appointment of a successor, and if the court deems the allegations sufficient, a citation shall issue to the executor, administrator, or guardian, and all other persons who, by the terms of a will or by law, are entitled to any portion of the estate.” “Sec. 8064. When the facts which authorize a removal come to the knowledge of the court, and no application is made as above provided, the court may make an order requiring the executor, administrator, or guardian to show cause why he should not be removed, upon which he shall be cited to appear; and at the hearing the court may revoke his letters as upon a petition,' and rrpon the removal of any such executor, administrator, or guardian the court shall appoint a successor.” “Sec. 8284. No action can be maintained against the sureties on any bond given by a guardian, unless commenced within three years from the discharge or removal of the guardian; but if at the.time of such discharge the person entitled to bring such action is under any legal disability to sue, the action may be commenced at any time within three years after such disability is removed.” “Sec. 8167. Before an action can be maintained on the bond of an executor whose letters have not been revoked, the party aggrieved must first obtain an order of the county court, authorizing him to bring the action; and before authority is given to bring an action upon the bond of a deceased executor or administrator whose account is unsettled, his — 129 — sureties must be cited and have an opportunity to apply for and obtain a settlement of such account.” “Sec. 8271. All proceedings under petitions of guardians for sales of property of their wards, giving notice and the hearing of such petitions, granting and refusing an order of sale, directing the sale to bo made at public or private sale, reselling-the same property, return of sale and application for confirmation thereof, notice and hearing of such application, making orders, rejecting or confirming sales and reports of sales, ordering and making conveyances of property sold, accounting and the settlement of accounts, must he had and made as provided and required by the provisions of law concerning the estates of decedents, unless otherwise specially provided in this chapter.” Sec. 6787 provides for a general six-years statute of limitations which would be applicable to an action brought by the-ward after his majority, against the guardian, though not to an action brought against the sureties. In speaking upon the subject the Cyclopedia of Law and Procedure (vol. 21, p. 248) says: “The statutes in a number of jurisdictions provide that no action shall be maintained against the sureties upon a guardian’s bond, unless commenced within a designated period after his 'discharge.’ The object of these statutes is to fix a time certain for the benefit of the sureties, so that they may know definitely when their obligations as sureties will terminate. These statutes, it has been held, are for the benefit of the sureties only, and not the principal, and the limitation, therein provided enters into and forms a part of the surety’s contract. These statutes apply, notwithstanding the discharge of the guardian before they go into effect, and they apply to sale bonds as well as to general guardianship bonds. Under these statutes the period of limitations does not date from the time when the right of action has accrued, but from the time of the 'discharge’ of the guardian; and if no cause of action accrues within such time, by reason of failure to take the necessary steps to procure a settlement, the sureties are exonerated. While the decisions are not entirely harmonious, the weight of authority is that the word 'discharged,’ as used in the statutes, means any mode by which the guardianship is effectually determined and brought to a close, either by removal, resignation, or death of the guardian, marriage of a female ward, or death or majority of the ward, and not from a final — 130 — settlement or any other period or transaction. There are, however, as already intimated, decisions under statutes of this character which are directly in conflict with the doctrine stated, and it has been held that limitations in actions against the guardian and his sureties on the bond do not commence to run from the date of the ward’s death or majority, but only from his discharge by order of court. There is, however, no question that the statute commences to run from that period.” This quotation perhaps states the state of the law upon the subject correctly. An examination of the authorities, however, will disclose the fact that the majority rule is based upon the Massachusetts case of Loring v. Alline, 9 Cush. 68, which, though it construed a statute similar to § 8284, Rev. Codes 1905, and that now under discussion, construed such statute alone and unaccompanied by statutes similar to §§ 4139 and 4141, Eev. Codes 1905. In none of the states, also, which followed the Massachusetts case and the Massachusetts rule, with the exception of Montana in the case of § 4141, are there to be found similar statutes. An examination of the, minority cases (Marlow v. Lacy, 68 Tex. 154, 2 S. W. 52; Allen v. Stovall, 94 Tex. 618, 63 S. W. 863, 64 S. W. 777; Fidelity & D. Co. v. Schelper, 37 Tex. Civ. App. 393, 83 S. W. 871; Cook v. Ceas, 143 Cal. 227, 77 Pac. 65, 147 Cal. 619, 82 Pac. 370) will, on the other hand, disclose that not only is an identical statute construed, but an identical statute which is part of a general Code, and is accompanied by statutes similar to the North Dakota statutes just enumerated. Many, if not all, of the so-called majority decisions, in short, construed the section standing alone, while the minority decisions construed it as a part of a Code, and not merely in its own light, but in the light of the general spirit and provisions of the;Code of which it was merely a part. It is well, also, to remember that although § 8284, Eev. Codes 1905, perhaps originated in Massachusetts, and before it came to us was construed by the court of the state of its adoption, it was not taken by us from Massachusetts, but in 1877 from California and then as part of a completed Code. The other decisions which follow the Massachusetts rule were also not handed down prior to its adoption in this state. It was construed in Cook v. Ceas, 143 Cal. 227, 77 Pac. 65, and Cook v. Ceas, 147 Cal. 614, 82 Pac. 370, adversely to the Massachusetts decision and to the contention of respondents; and although that decision was subsequent to the adoption — 131 — of tbe statute in this state, it was a construction of tbe Code by tbe state from wbicb we derived it, and of tbe section as part of a completed Code wbicb we adopted as a whole. Tbe only case, indeed, where tbe section is construed under a Code similar to ours, and in any way wbicb may seem adverse to tbe contention of appellants, is in tbe Montana case of Berkin v. Marsh, 18 Mont. 152, 56 Am. St. Rep. 565, 44 Pac. 528. Even that case is not in fact adverse to tbe contention of appellants. There tbe ward was dead, and the court merely held that, on account of tbe fact of tbe lack of a subject-matter, that is to say, of a ward, there could be no guardian of tbe person at all, so that it was no use to talk either of a suspension or of a discharge. So, too, tbe statute (§ 3791) says that “tbe power of a guardian is superseded by tbe ward’s attaining majority” while ours merely says that it is suspended (§ 4139). Sec. 4139j Bev. Codes 1905, provides that tbe power of a guardian appointed by a court is suspended only (1) by order of tbe court; or (2) if tbe appointment was made solely because of tbe ward’s minority, by bis attaining majority. Sec. 4141 provides: “A guardian appointed by a court is not entitled to bis discharge until one year after tbe ward’s majority.” It seems quite clear from a perusal of these sections that tbe legislature intended that, upon tbe arrival of tbe ward at bis majority, tbe control of tbe guardian over him should as between tbe guardian and tbe ward be suspended, but there should be no actual discharge without a formal order of tbe court and a determination by that court that tbe ward bad in fact reached such majority, and that even that discharge could not be obtained as a matter of right until a year after majority. Tbe pros and cons of the case are thoroughly argued in tbe cases of Goble v. Simeral, 67 Neb. 276, 93 N. W. 235, and Cook v. Ceas, 143 Cal. 227, 77 Pac. 65, 147 Cal. 619, 82 Pac. 370, and it would be useless for us to repeat tbe discussion here. Tbe legislature, we believe, was in § 8284 dealing with tbe same kind of discharge that it bad elsewhere made provision for in tbe Code; that is to say, a discharge by tbe court, one wbicb was of record and could be read and understood, and wbicb would disclose to the world the fact of its making. See §§ 8063, 8064, 8067, 8068, 8242, 4141, 4140, Rev. Codes 1905. The primary meaning of tbe word “discharge” certainly embraces tbe affirmative action of someone. The statute does not say “from the expiration or lapse of the guardianship,” but uses the words, — 132 — “from tbe discharge or removal of the guardian.” It would certainly seem that affirmative action on the part of the court was anticipated. Another reason for holding to this conclusion is that under the authorities, and probably under §§ 8167 and 8271, Rev. Codes 1905, no action can be maintained against the sureties prior to an adjudication by the probate court finding a liability. See Nickals v. Stanley, 146 Cal. 724, 81 Pac. 117; Kugler v. Prien, 62 Wis. 248, 22 N. W. 396; Re McPhee, 10 Cal. App. 162, 101 Pac. 530; Ball v. LaClair, 17 Neb. 39, 22 N. W. 118; Fidelity & D. Co. v. Schelper, 37 Tex. Civ. App. 393, 83 S. W. 871; Newton v. Hammond, 38 Ohio St. 430; McKim v. Mann, 141 Mass. 507, 6 N. E. 740; Perkins v. Stimmel, 114 N. Y. 359, 11 Am. St. Rep. 659, 21 N. E. 729; Loring v. Alline, 9 Cush. 68. The judgment of the District Court is reversed and the cause remanded, with directions to enter judgment for the plaintiff and appellant as prayed for in this complaint.