Byrd v. State ex rel. Stewart

Alvey, J., delivered the opinion of the Court. This is an action on a guardian’s bond, and, among various other pleas, the Statute of Limitations was pleaded in nine different forms; to all of which pleas of the Statute, except the second and third, the plaintiff demurred. Before the adoption of the Code, the proper mode of pleading the bar of the Statute of Limitations to an action on a guardian’s bond, was to allege that twelve years had elapsed from the passing of the bond in the declaration mentioned, before the issuing of the writ original in the cause. Act of 1729, ch. 24, sec. 21 ; 1798, ch. 101, sub-ch. 12, see. 4: State, use of Johnson vs. Green, 4 G. & J., 381. But, in the adoption of the Code, the law was changed, as decided in the case of Thruston vs. Blackiston, 36 Md., 501 ; and since that time the bar commences to run only from the time when the breach of the condition of the bond occurs. The plea should therefore aver, in the language of the Code, Art. 57, sec. 3, that “the debt or thing in action” was above twelve years standing, before suit brought; or should contain averments of equivalent import. Here, the pleas demurred to all fail to make such proper averments as to constitute a bar, under the provisions' of the Statute as now construed; and hence the judgment of the Court below, sustaining the demurrers to those pleas, was correct, and must, therefore, be affirmed. The first guardian, Dougherty, was removed, and Crisfield, one of the sureties on his bond, was appointed in his stead ; and the main question in the case is as to the legal effect of certain charges in Crisfield’s accounts settled in the Orphans’ Court, as means of releasing the first guardian’s bond, — that upon which this suit is brought. By the first of Crisfield’s accounts, approved and passed by the Orphans’ Court on the 5th of April, 1870, lie charged himself with the interest on $2,021.90, balance of — 502 — the ward’s principal due from the former guardian, as per account of profits passed on the 8th of December, 1868; and, on the credit side of the account', after deducting the amount exjoended in .excess of profits, the sum of $1,881.57 was declared to he the balance of the ward’s principal in money. And so in the second account, settled on the 13th of January, 1871, he charged himself with the interest on $1,881.57, balance of the ward’s principal due from the former guardian, and, on the credit side of the account, after deducting the amount expended over and above the amount of interest received, the sum of $1,416.70 was declared to he the balance of the ward’s principal in money. After the settlement of these accounts, Crisfield was removed from the position of guardian, and Dr. William Stewart, one of the sureties on Crisfield’s guardian bond, was appointed in his stead; and on the 23rd of January, 1872, the Orphans’ Court, by its order, directed Dougherty, the original guardian to pay over and deliver to Stewart all money, property, and assets of every description, belonging to the ward; but this order was in no manner obeyed. The proof is, that neither Crisfield nor Stewart received any portion of the ward’s money or property which carne to Dougherty’s hands. 'But, inasmuch :as Crisfield was one of the sureties on the guardian bond of Dougherty, and therefore liable for any failure of the guardian to account for or pay over the money or property of the ward which came to his hands, it is contended that the accounts stated by Crisfield have the effect of charging him exclusively, and to the exoneration of the former guardian’s bond, with the amount stated to be in Dougherty’s hands, upon the principle, as decided in the case of Flickinger vs. Hull, 5 Gill, 60, that where a guardian becomes insolvent and dies, or is removed from office, and his surety is appointed his successor, and the latter charges himself with the balance due the ward from the — 503 — first guardian, this makes the second guardian liable to the ward, for the amount so charged. But while the principle relied on, as applied to a proper case, may be readily conceded, we fail to perceive that it can have any application to this case. Flickinger vs. Hull was not an action on a guardian’s bond, but was a case in equity by one co-surety on a guardian’s bond against another, seeking to have ascertained and adjusted the due proportions to which each surety was liable on account of the common debt. In that case, as in this, one of the sureties on the first guardian’s bond became the second guardian, and he charged himself with the balance due from his predecessor, without in fact receiving any part of the ward’s funds ; and as between such second guardian and his co-surety on the first guardian’s bond, it was held, that a surety who had become constructively liable at law to the principal creditor by charging himself with sums he had not in fact received, would not be concluded in equity, in relation to his co-surety originally liable for contribution, by the admission thus made in stating his account. That was the leading proposition settled in the case of Flickinger vs. Hull ; but it is quite clear that the determination of this case depends upon no such principle. The condition of the bond sued on is, that the guardian shall faithfully account with the Orphans’ Court, as directed by law, and also deliver up the ward’s property agreeably to the order of the Orphans’ Court, or the directions of law, and in all respects perform the duties of guardian according to law. The Orphans’ Court ordered the property to be delivered up, and that order was disregarded, and it is not pretended that the property of the ward was ever in fact delivered to the second guardian. Upon failure to deliver the property, as ordered by the Orphans’ Court, the bond at once became liable to suit. Code, Art. 93, secs. 158, 187, 189. And it is no answer to the action that the second guardian charged himself — 504 — with, the funds in the hands of the first guardian, without in fact ever having received them. The estate of the ward cannot he divested in that way, nor will the bond be released, or the order of the Orphans’ Court, directing the property to he delivered up, be gratified, upon the mere charging of the funds in the account of the succeeding guardian, when in fact he has never received them. It is true, the ward cannot recover on more than one bond for and in respect of the same property or funds; but then, in a case where the second guardian has really charged himself, the ward has his election; and if this were an action on the second guardian’s bond, that given by Orisfield, and it was made to appear that he had charged himself with the funds in the hands of his predecessor, though never received by him, an action could be maintained upon the bond, and the guardian and his sureties would be concluded by the admission thus made in the account. They would not be allowed, after such solemn admission, made the basis of an account in the Orphans’ Court, to controvert the fact of the receipt of the funds thus charged. But here, it is not necessary to invoke the aid of such an estoppel ; the right to recover depending upon the simple fact of the first guardian’s failure to deliver up and pay over the funds of the ward, according to the order of the Orphans’ Court. The 18th and 14th' pleas of the defendants clearly formed no bar to the action, and the demurrers thereto were properly sustained. The point of both of those pleas appear to be, that by reason of Orisfield’s relation to the first guardian as surety, and his being o.ne of the executors of Byrd, the other surety on the first guardian’s bond, and his appointment of guardian in the place of the first guardian removed, he thereby became possessed of all the moneys and property belonging to the ward, of which the first guardian had been possessed, or for which he was accountable. But, as we have already said, such was not — 505 — the necessary legal consequence of the appointment of the second guardian, under the facts as disclosed in the pleas. Nothing less than a faithful accounting for and delivering up the property of the ward, by the first guardian, will discharge the bond. It being competent to the plaintiff to show that Crisfield never did in fact receive the funds of the ward from the first guardian Dougherty, it follows that there was no error in the Court’s rulings on the first three exceptions taken by the defendants ; nor can we perceive any error, of which the defendants can complain, in the ruling on the fourth exception. The Court was asked to construe the accounts settled by Crisfield, and determine whether they furnished evidence that he had charged himself with the funds in the hands of Dougherty, the former guardian ; whereupon the Court declared its opinion to the effect that such accounts furnished no evidence of that fact. This opinion does not appear to have been given as an instruction to the jury ; and as the whole question seems to have been as to the effect of the mere charge in the accounts, without pretending that Crisfield had in fact received the funds from his predecessor, it was but an abstract question, and one that did not affect the plaintiff’s right to recover on the bond in suit, even if it were conceded that the accounts did furnish evidence of such charge. Besides, by the instructions granted at the instance of the plaintiff, the right to recover was made to depend upon the fact, to be found by the jury, whether Crisfield really intended at the time to charge himself as guardian with the whole amount due the ward from the former guardian Dougherty. The defendants were thus given the benefit of a defence to which they were not entitled ; for the question should have been, not whether Crisfield had simply charged himself with the fund, but whether he had in fact received it from the guardian whose bond is now sued. As to the prayers offered by the defendants, they all proceed upon the theory that, if Crisfield charged himself — 506 — in the accounts settled by him with the funds in the hands of the first guardian, then, hy operation of law, the bond of such first guardian was thereby discharged, without reference 'to the fact whether the funds had been paid over or not, and that the only remedy for the ward would he against the bond of Orisfield, the second guardian. In this we do not concur, and think all the prayers of the defendants were properly rejected. (Decided 10th May, 1876.) Judgment affirmed.