McNeill v. McBryde

• Decision Date: 09 February 1893
• Parties: McNEILL et al. v. McBRYDE et al.
• Court: North Carolina Supreme Court

16 S.E. 841

112 N.C. 408

McNEILL et al. v. McBRYDE et al.

Supreme Court of North Carolina

February 9, 1893

Appeal from superior court, Robeson county; WINSTON, Judge.

Action by T. A. McNeill and others against D. D. McBryde and others to charge the real estate of A. S. McKoy, deceased, liable for the indebtedness due to them from their guardian, on whose bond said McKoy was surety. Defendants interposed a demurrer, which was overruled, and defendants appeal. Demurrer sustained.

An action to subject the real estate of a deceased surety on a guardian's bond to the debt of such guardian may be maintained without first obtaining a judgment on the bond where the damages arising from the breach of such bond are alleged in the complaint and admitted by the demurrer.

The complaint is as follows: "The plaintiffs, complaining of the defendants, allege: (1) That one J. P. Hodges was duly appointed and qualified as guardian to the minor heirs of William T. Smith, deceased, viz. Julia J., Walter J., J Lawrence, Mary L., Sarah C., Caroline E., and Alice Hunter before the court of pleas and quarter sessions of Cumberland county, N. C., at June term, 1855, held in and for said county, and gave bond at the same time in the penal sum of $50,000, with one A. S. McKoy and Henry Elliott as sureties thereon, a copy of which bond is hereto attached and marked 'Exhibit A,' and made a part of this allegation of this complaint. (2) That on the 29th day of May, 1878, a proceeding by the plaintiff and others, wards of the said J P. Hodges, was begun before the clerk of the court of Cumberland county for a final account and settlement of the estate, rents, and profits in the hands of said guardian of said minors, in which such proceedings were had as that at May term, 1870, of the superior court of Cumberland county judgment was rendered in favor of the plaintiffs T. A McNeill and wife, Caroline E. McNeill, against the said J. P. Hodges, for the sum of $1,694.66, with interest on the same from the 29th day of May, 1878, and for costs, as will more fully appear by reference to said judgment, a copy of which is hereto attached, and marked 'Exhibit B,' and made part of this allegation of the complaint; and that no part of said judgment has ever been paid. (3) That the said J. P. Hodges is insolvent. (4) That plaintiff Caroline E. McNeill attained her majority on February 8, 1871. (5) That plaintiff Caroline E. McNeill intermarried with her coplaintiff T. A. McNeill on the 24th October, 1877. (6) That A. S. McKoy, surety as aforesaid, died intestate in the state of Alabama in the year of 1865 or 1866, as plaintiffs believe, leaving, him surviving, as his heirs at law, the defendants Fannie McBryde, who intermarried with her codefendant D. D. McBryde before the commencement of this action; Malcolm McKoy, who intermarried with his codefendant Minnie McKoy before the commencement of this action; Margaret McDowell, who intermarried with her codefendant Charles McDowell before the commencement of this action; and the other defendant, Jennie McDowell, who intermarried with ___ McDowell, who died before the commencement of this action. (7) That the said A. S. McKoy, surety as aforesaid, died seized and possessed of the following described real estate and premises situate in the county of Robeson and state of North Carolina, to wit: A certain tract or parcel of land on the east side of Shoe Heel, bounded as follows: Beginning at a stake by a post oak in the edge of the road, said Hughes' corner, and runs with his line north, 75 west, 47 chains and 50 links, to a stake by two pines on the west side of McLean's Mill branch, his other corner; thence south 39 chains to a large pine by two pines, the beginning corner of a two hundred acre survey granted to John Moore; thence with and beyond the first line of that survey east 36 chains and 50 links to the road; thence along the road to the beginning,--containing one hundred and forty-one acres; and one other tract, lying and being in the said county, situated on the northeast side of Shoe Heel swamp, on McLean's Mill branch, beginning at a poplar by three pines in the west edge of the branch, in the county line, and runs with the county line north, 34 east, 7 chains, to a stake; then with Patterson's line due east 60 chains to a stake by a small pine; then south, 21 east,...