Opinion
June Term, 1821.
The proper construction of the act of 1795, c. 15, is that is it incumbent on an infant after arriving at full age, not only to "call on his guardian for a full settlement," but to have a final adjustment of all accounts, matters and things with his guardian within three years, and either sue for any balance which may be due him or notify the securities to the guardian bond of the situation in which he stands to the guardian. Without such conduct on the part of the infant the securities are discharged.
THIS was an action of debt, from EDGECOMBE, brought on a guardian bond against Taylor, the principal, and the administrator of Dew, a deceased security. The breach assigned was the nonpayment by the principal to the ward, upon his arrival at age, of the estate to which he was entitled. Among other pleas put in by the administrator of Dew were the following: First, that his intestate had been dead more than seven years before claim made by the ward; and, secondly, that the ward had not, within three years after coming of age, called on the guardian for a full settlement of his guardianship. To these pleas there were replications and issues thereon. The ward (272) came of age in October, 1814, and this suit was institute 26 August, 1818. Dew died, and administration was granted on his estate in 1806. In September, 1817, Taylor, the guardian, made, payments to the ward on demands made on him as guardian by the ward.
Upon the charge of the court below, the jury found a verdict against the administrator on both pleas, and, a motion for a new trial having been overruled and judgment rendered against the administrator, he appealed to this Court.
Gaston for the appellant.
Mordecai for the appellee. (273)
The policy of the act of 1795, undoubtedly, is to lighten the burden of securities and free them from stale demands, when a remedy might have been had if promptly prosecuted against the real debtor.
The intent of the Legislature would not be effectuated if the injunction upon the creditor to call for a full settlement meant a mere call for such a settlement and nothing more. If that is the case, such call, and a total disregard of it by the guardian (274) within three years after the infant's arrival at full age, would leave the securities in the same situation in which they were before the passage of the act.
I think it is incumbent on the infant, after arriving at full age, not only to call for a full settlement, but to have a final adjustment of all accounts, matters and things with his guardian within three years, and either sue for any balance that may be due him, or notify the securities to the guardian bond of the true situation in which he stands to the guardian. In the latter case, the securities, if they apprehend any danger from their securityship, may by legal process compel a speedy adjustment of accounts between the creditor and debtor, so as not to be injured by any future and distant call that may be made on them for the insolvency of their principal. Nothing short of such conduct towards the securities will, in my opinion, satisfy the act of 1795, ch. 15, on which the defendants rests his defense; and as such has not been observed, I think a new trial should be granted.
TAYLOR, C. J., and HENDERSON, J., concurred.
Cited: Jones v. Blanton, 41 N.C. 129; S. v. Harris, 71 N.C. 175; Williams v. McNair, 98 N.C. 334; Self v. Shugart, 135 N.C. 186.