Brandes v. Carpenter

• Decision Date: 27 May 1897
• Docket Number: Nos. 10,505 - (151).,s. 10,505 - (151).
• Citation: 68 Minn. 388
• Parties: MARY J. BRANDES v. HERBERT M. CARPENTER.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

Page 388

68 Minn. 388

MARY J. BRANDES v.HERBERT M. CARPENTER.¹

Nos. 10,505 - (151).

Supreme Court of Minnesota.

May 27, 1897.

Appeal by defendant from an order of the district court for Hennepin county, Russell, J., denying a new trial. Reversed.

James A. Kellogg, for appellant.

Francis G. Burke, for respondent.

MITCHELL, J.

The plaintiff is a Dakota or Sioux mixed-blood, born December 17, 1855, married in 1877, and has always lived in Wisconsin.During her early childhood, certain "Sioux half-breed scrip" was issued to her under the act of congress of July 17, 1854.A part of this scrip was, prior to September, 1870, the date does not appear, located on 120 acres of land in Morrison county, Minn., which thereby became her property.On September 14, 1870, upon the petition of her father, the defendant Farnham was appointed guardian of her estate in Minnesota by the probate court of Morrison county.In February, 1871, Farnham, as principal, and the defendant Carpenter and one Lovejoy, who died over nine years ago, as sureties, executed a guardian's bond in the statutory form, conditioned, among other things, that at the expiration of his trust Farnham would settle his account with the probate court, and pay over all the estate, money, and effects in his hands or due from him on such settlement to the person entitled to the same.

In April, 1871, Farnham petitioned the probate court for license to sell the land referred to.The court granted the license.The land was sold, the report of sale confirmed, a guardian's deed executed in October, 1871, and recorded in August, 1873.Nothing more was done or attempted to be done in the guardianship proceedings until December 30, 1895, when the probate court, upon petition of the plaintiff, cited Farnham to appear on the 17th of January, 1896, and render his account as guardian for settlement and allowance, and to pay over to plaintiff the money which he had received on sale of the land.Farnham failed to appear or render any account, and thereupon the court, upon proof, proceeded to settle his account, and ascertain the amount of money which he had received, and rendered a decree adjudging that he was indebted and should pay to the plaintiff the sum of $350, the amount for which the land was sold, with interest from June 1, 1872.Carpenter was not a party to this proceeding.Farnham having failed to pay, the plaintiff, in February, 1896, brought this action on the guardian's bond to recover the amount adjudged by the probate court to be due her.Carpenter, the surviving surety, was the only one who interposed any defense.

As counsel for the defendant does not question but that the sureties on a general guardian's bond are concurrently liable with the sureties on the sale bond for the failure of the guardian to account for the proceeds of real estate sold under license from the court, we have not considered the point.One of Carpenter's defenses was that more than 21 years had elapsed since any right of action accrued to the plaintiff against him.The statutory limitation which would apply is six years from the time the cause of action accrued.Plaintiff's contention is that no action on the bond would lie until the settlement of the guardian's account by the probate court, and therefore the six years would only commence to run from that date.On the other hand, the defendant contends that the statute began to run from the time the plaintiff became of age and was emancipated from the guardian, when it immediately became the duty of the guardian, under the statute,² to "render his final account of his guardianship to the probate court, and turn over all the property in his possession belonging to the ward" to her, at which time, in case of his failure to do so, the ex-ward has the immediate right to take steps to compel him to do so.The authorities upon this question are conflicting, and leave it in much doubt and confusion.The conflict seems to be due in part to differences in statutes; in part to a difference of opinion as to whether the guardian's bond is, in the first instance, the subject of a suit, or only so upon a failure to obey some order or judgment of the court, as, for example, to file an account, or to pay over the amount ascertained to be due on a settlement and allowance of the account; and in part to a difference of opinion as to whether, when a guardian fails to render his account, and turn over the property in his hands, when his ward becomes of age, this default and all subsequent acts of omission constitute but a continuing default, or whether every subsequent failure to comply with any order of the court constitutes a new breach of the conditions of the bond.Among the authorities on this subject may be cited State v. Henderson, 54 Md. 332;Biddle v. Wendell, 37 Mich. 452;Finnell v. O'Neal, 13 Bush, 176;People v. Seelye, 146 Ill. 189, 32 N. E. 458;Jones v. Jones, 91 Ind. 378; Lane v. Farmer, 11 Lea, 568;Langston v. Shands, 23 S. C. 149;Newton v....