Pearson v. McMillan

Handy, J., delivered the opinion of the court. This action was brought by the plaintiff in error against the defendant’s testator, as surety on a bond executed by one Ewart, as guardian of Juliet IT. Smith, the usee, in the State of South Carolina, on the 10th September, 1836, under an appointment of the Court of Equity in that State, which has jurisdiction of such matters. The bond is conditioned, among other things, “ to account to the commissioner in equity” (the obligee named in it), “or his successors, or to such person or persons as the said Court of Equity shall appoint to receive the same, for all such sums of money” which might be received by the guardian on account of his guardianship, &c.; and the action is brought in the name of Pearson, as commissioner in equity in the State of South. Carolina, and sue607 cessor in that office to the obligee named in the bond, for the use of the ward. It appears by the record, that on the 1st June, 1841, Ewart, the guardian, made his return to the court, showing the amount due by him; and on the 18th day of the same month that he was removed from his office, and was ordered to pay over to Samuel Donnelly, who was appointed in his place, the moneys due by him; and that, on a bill filed by Donnelly against him, a decree was rendered on the 21st June, 1847, against him for the aggregate amount due the ward in this case, and another ward, who stood in the same condition ; upon which execution issued, which was returned nulla bona. The sums due both wards having been united in making up the amount of this decree, at a subsequent term of the court the decree was amended so as to show the sum due each ward respectively. It further appears, that McMillan, the surety on the bond, removed to this State early in the year 1845, and became a resident here, and this suit was brought on the 25th February, 1854. The defence is the Statute of Limitations, and it appears that the ward, for whose use the suit is brought, was about eighteen years of age and a feme covert, at the time of its commencement. Upon these facts, the case was submitted to the court below for decision, both as to matters of fact and of law, and thereupon judgment was rendered for the defendants, upon the defence of the Statute of Limitations. And the case is submitted for decision here upon the question, whether the statute is a bar to the action. It is insisted, in behalf of the defendants in error, that the action accrued in June, 1841, when the guardian returned his account, and was removed from the guardianship; or, at furthest, when the decree was rendered against him in June, 1847, for the payment of the sum of money due his wards; and that, from either of these periods to the time of the commencement of this suit, is a sufficient time to create the bar of the statute. On the contrary, it is insisted that the usee is the real plaintiff in the action, and that, being both an infant and a feme covert when it was commenced, her right of action is preserved by the saving of the statute in favor of the rights of such persons ; and hence, that, although an action might have been brought in the name of the nominal plaintiff, as trustee, for her use, after either of the periods stated, yet that her right of action is not barred by the failure to do so. [608] It is true, that in matters of private contract, as bonds, promissory notes, and the like, between individuals, the obligee or payee is the proper plaintiff in an action at law, brought to recover upon such instruments; and for all technical purposes, he is regarded as the legal plaintiff. For he is not only the party with whom the contract was directly made, but the party for whose benefit it was entered into. But it is quite different in cases of bonds executed by trustees and public officers, acting in a fiduciary capacity, and giving bonds for the faithful performance of their duties. Such bonds are in form made payable to the State, or to some public officer, but are in fact for the benefit and security of the persons who may be interested in the performance of the duties committed to the obligor, as essentially as if made payable directly to such persons. And it is generally provided in the statutes authorizing such bonds, that they shall be put in suit at the instance of any party who may be injured by a breach of their conditions. Unlike the cases of private contracts, the obligee has no beneficial interest in them, and is to all intents and purposes a mere nominal party, whose name is used because that of the party who may be beneficially interested in the performance of the obligation is not known. Hence it is held, that a suit cannot be maintained in the sole name of such a nominal party, without stating for whose use it is brought, and showing wherein such party is injured by a breach of the conditions of the bond. Judge, &c. v. Johnson, 4 How. 680; Mitchell v. Connolly, 1 Bailey Rep. 203; Perkins v. Moore, 16 Ala. 10. In this case, the condition of the bond is to pay the moneys received by the guardian to the commissioner, or to the person appointed by the court to receive them, and the court ordered them afterwards to be paid over to the second guardian for the use of the ward; so that the bond contained a positive obligation to pay the money to the benefit of the ward, and by the order of the court, the nominal obligee was not entitled to receive it. It is, therefore, clear, that while the name of the obligee must appear as the formal plaintiff, the ward is the real party to the action, and that it cannot be maintained without the use of her name. And hence no defence to the merits of the suit can prevail, unless it be a bar to it considering the suit as brought by her as the real plaintiff. [609] Treating the usee as the plaintiff in the action, for all substantial legal purposes, her infancy or coverture, under the saving of the statute, prevented the running of the statute, and rendered the defence unavailable. This view is much strengthened by the provisions of the Statute of 1850, abolishing the forms of pleadings at common law, and almost wholly dispensing with the technical rules of the common law in relation to the parties to such actions. Under these provisions, it is clear that the rights of the real parties interested as plaintiffs, should not be prejudiced by the technical rules of the common law in relation to parties to actions, relied on by the defendants in error. And this action was brought whilst that statute was in force. But if the nominal plaintiff here be regarded as a trustee for the usee, and as holding the legal title in that character, the action for the use of the ward is not barred by the mere failure of the trustee to sue upon the bond after the cause of action accrued, and within the time stated in the Statute of Limitations, if the party entitled be under a disability enumerated in the statute, and the action be brought within the time limited, after the removal of the disability. This has been repeatedly held by the court. Bacon v. Gray, 23 Miss. 140; Fearn v. Shirley and wife, 31 Ib. 301; Adams v. Torry’s Exors. 26 Ib. 499. It is, however, urged that this rule has only been applied to suits in chancery, by the party who has been under a disability, and that it is not applicable to actions at law; that in the former it may be allowed by reason of the equitable claim of the party; but in the latter, that his right of action is governed by strict rules of law. But that is not the reason upon which the rule is founded. It rests upon the positive provisions of the statute, giving to the party, under any of the prescribed disabilities, time to institute an action after the removal of the disability. “ This saving,” it is said, “ in the statute, is general. It covers all rights of infants, and operates against all persons. At least, there is no exception in the statute itself, and to hold that time does create a bar against infants, in certain cases, is to interpolate on the statute.” Bacon v. Gray. And this reason is applicable as well to the rights of an infant, which have been jeoparded by the laches of the trustee, and [610] which from their nature must be asserted by action at law, as to such as it may be necessary to assert in a court of equity. The statute contains nothing which countenances a distinction between the two kinds of rights, as to the application of the saving to them. It is also said, that the rule has not been extended to recovery of mere money demands, though it has been allowed for the recovery of specific personal property. But this is not justified by the general language of the statute; and the objection is fully answered by the reasoning in the case of Bacon v. Gray, above referred to. The reason of the saving in the statute is very justly and clearly stated in that case, to be the presumed incapacity of the party under disability to assert and protect his rights during its continuance ; and there appears to be no reason why it should not apply to such rights as consist in money demands, as well as to claims to specific property. For he is alike incapable of asserting and protecting his rights in the one and in the other; and they are both committed in the same way to the charge of the trustee. It follows from these views of the case, that the judgment' is erroneous, and must be reversed; and the case having been submitted to the court below for decision upon the pleadings and evidence, and we proceeding to render the judgment which that court should have rendered, direct that judgment be rendered here for the plaintiffs in error, for the sum of money demanded in the action.