Barnes v. Lewis

• Decision Date: 30 June 1875
• Court: North Carolina Supreme Court
• Parties: STATE on the relation of JAMES A. BARNES v. WM. T. LEWIS.

73 N.C. 138

21 Am.Rep. 461

STATE on the relation of JAMES A. BARNES

v.WM. T. LEWIS.

Supreme Court of North Carolina.

June Term, 1875.

*1 Where A was appointed guardian of B by a County Court, of which at the time of his appointment he was an acting Justice: Held, that the fact that he was so acting, did not render nugatory his appointment, so as to discharge C, a surety on the guardian bond, from liability to the ward.

Where A signed a guardian bond as surety, and at the time of signing the same the name of B appeared in the body of the bond also as surety, though he had not signed the bond, and never did: Held, in an action against A as surety by the ward, evidence was not admissible to show that A was induced to sign the bond as surety, by the statement of C, the guardian, that the said B would also sign as surety.

(The cases of State v. Pool, 5 Ired. 105; Brinegar v. Chaffin, 3 Dev. 108; and Hayes v. Askew, 5 Jones 63, cited and approved.)

CIVIL ACTION, on a guardian bond, tried before Moore, J., at Spring Term, 1874, EDGECOMBE Superior Court.

This action was brought against the defendant as surety on a bond executed by John F. Speight, as guardian of his relator the execution of the bond not being denied.

On the trial, the defendant proposed to prove by himself, that as an inducement to his execution of the bond, John F. Speight stated that one Jesse H. Powell would also sign the bond as surety, and upon that promise and understanding defendant agreed to sign the same as surety, and when he signed the same in the presence of the Court, the bond was filled up, and on the face thereof the name of Powell appeared as one of the sureties, and defendant had no knowledge that Powell did not sign the same as surety, until about four years ago.

The counsel for the relator objected to the admission of this evidence, and the Court sustained the objection, and defendant excepted.

It appeared from the evidence that John F. Speight, the guardian of the relator, and two other Justices, constituted the Court at the time of the appointment of Speight as guardian, and the execution of the bond. The defendant insisted, that for that reason the appointment of the guardian and the bond was void.

The Court held that the defendant was liable and gave judgment for the plaintiff; thereupon the defendant appealed.

Battle & Son and J. W. Johnston, for appellant .

Howard & Perry, and D. Battle, contra .

RODMAN, J.

*2 The defendant is sued as surety for one Speight, on a bond given by Speight as guardian for the relator. He makes two defences:

1. When Speight was appointed guardian, the County Court was composed of himself and two other justices of the peace for the county of Edgecombe. In order to have made a Court, Speight must necessarily have taken a part in making the appointment. The argument is that the appointment was void, and that consequently the bond is void also.

There can be no doubt of the general proposition that no man is allowed to act as Judge in a matter in which he has an interest, except to make such formal orders as may be necessary in order to continue the case, or to send it to some other Court competent to try it. Norfleet v. ____, 72 N. C. Rep.; Freeman on Judgments, secs. 144, 148.

With that exception the judgments of a Judge who has an interest are said to be void.

But in all the cases cited to illustrate this proposition, which I have been able to find, the question has occurred between the original parties to the judgment, or their privies. Obviously the same reasons would not apply, or, at least, would not apply with equal force, when innocent third persons had acquired rights under the judgment.

But it is unnecessary to pursue the investigation of this subject on general principles. We consider that the liability of the defendant is established by the act of 1842, Revised Code, chap. 78, sec. 9, which enacts, in effect, that every bond taken under the sanction of a Court of Record for the performance of any duty belonging to any office, &c., shall be valid, notwithstanding any irregularity or invalidity in the conferring of the office. State v. Pool, 5 Ire., 105.

Independently of this statute, the defendant is estopped to deny that Speight was rightfully appointed guardian of the relator. It is so recited in the bond, and it is established law that although a mere general recital in the body of a bond does not create an estoppel, yet a particular recital, that is, of such facts as were the inducement moving to the execution of the bond, does. Hays v. Askew, 5 Jones, 63; Bigelow on Estoppel, 295, 313 Cutter v. Dickinson, 8 Rik. 386; Bruce v. United States, 17 How, 437.

2. The defendant “proposed to prove by himself that the said John F. Speight, now dead, as an inducement to his signature of the bond as surety, stated that one Jesse H. Powell would also sign the bond as surety, and that upon that promise and understanding defendant agreed to sign the same as surety, and that when he signed the same in presence of the Court, the bond was filled up, and on the face thereof, the name of said Powell appeared as one of the sureties, and defendant had no knowledge that said Powell did not sign the same as surety, until about four years ago.” The Court refused to hear the testimony, and defendant excepted.

The propriety of the rejection of this testimony depends entirely on its materiality. If the facts proposed to be proved, would have made a sufficient defence, either to the whole, or to any part of the relator's claim, the testimony was material, and should have been received. If however, it would not have been a defence, it was immaterial, and was properly rejected.

*3 The authorities bearing more or less directly upon the question thus presented are numerous, and not always consistent, and I have not any where met with an attempt to classify them, and to extract the general rules which they establish. The task would be a laborious, and if fairly done, an useful one. The members of this Court however have no time for such tasks. All that we shall undertake to do, will be to distinguish certain classes of cases from the present, and to state the grounds of our decision in the present case.

An official bond is presented to a person who is solicited to sign it as a surety, and the names of certain other persons are recited in the body of the bond, and appear signed to it, and the person solicited to sign, believes that their signatures are genuine, when, as afterwards appears, they are forged. The surety is not bound. Luly v. The People, 27 Ill. 173. Chamberlin v. Beaver, 3 Bush. (Ky.,) 561. But contra, Bigelow v. Coonegys, 5 Ohio, 256.

2. If it is agreed between the parties to an obligation that it shall not be valid unless executed by all of certain persons, it is not valid until so executed. Thus, generally expressed, the rule is unquestionable; but it is subject to be controlled; as for example, if it be afterwards delivered absolutely to the obligee by a part of the proposed obligors only. State v. Peck, 53 Maine, 284. And the older authorities are, that it cannot be delivered to the obligee, as an escrow.

In the case of an official bond taken under the authority of a Court, probably a notice to the Court, assented to by it, that a surety had signed the bond and left it with the clerk, (and a fortiori with another...