Wycoff v. Michael

Granger, J. The only question presented on the appeal is as to the statute of limitations. It seems to be conceded that, unless the action is founded on the guardian’s bond, the plea of the statute is well taken. In Humphreys v. Mattoon, 43 Iowa, 556, it is held that,, where a guardianship ceases by a ward’s arriving at full age, an action lies in favor of the ward; that after the ward becomes of age he stands in the relation of a creditor to his guardian; that his cause of action is then complete; and that, if he fails to bring suit within the time limited, his claim is barred. That this action was not originally intended as one on the bond is clear. It was simply an application for an accounting with the guardian, and for an order to pay over money found due. In fact, we think the character of the proceeding. 561 was not changed by the amendment. Nothing is asked as to the surety on the bond, and, for the purpose of the relief asked, the law enjoined every obligation on the guardian which is claimed because of the conditions of the bond. The law fixes the duties of guardians, and then requires them to give a bond “with surety * * * conditioned for the faithful discharge of their duties * * * according to law.” Code, section 2246-Hence, as to the guardian, the law fixes the same duties as does the bond. But for the surety the bond would be of no significance, and this added security is what the bond is for. It is a matter of exceeding doubt if an action of this kind could be maintained on the bond. By Code, section 2251, it is provided that a failure to comply with any order of the court in relation to guardianship shall be deemed a breach of the conditions of the bond. In O’Brien v. Strang, 42 Iowa, 643, this section is cited; and, while it is there said that the language does not necessarily preclude the idea of a breach in some other way, it seems to be the thought of the court that, with all the sections of the law considered, nothing less than a failure to obey the orders of a court shall .be deemed a breach of the guardian’s bond. It is perhaps best that we would not state this as a rule without exceptions, but that it is the general rule must be conceded, because of the language of the law, and the adaptation of the rule to practice. In Gilbert v. Guptill, 34 Ill. 112, a case cited by appellee, it is said: “The settlement with the court of probate by the guardian, made before or after the ward arrives at full age, fixes the amount of damages to be recovered under the bond.” In that case it seems to be held that a proceeding for an accounting with the guardian is not in the nature of an action to be barred. But on that branch of the case this court has taken the other view in Humphreys v. Mattoon, supra, and the holding has support on authority. See State v. Willi, 46 Mo. 236; Jones v. Jones, 91 562 Ind. 378. Our conclusion-is that this is not an action on the bond, but one for an accounting only, to determine whether anything was due from the guardian- to the ward. The proceeding was not instituted for some eight years after the plaintiff attained his majority and this cause of action accrued, and the action is therefore barred. — Reversed. ,