Briggs v. Smith

• Decision Date: 30 June 1880
• Citation: 83 N.C. 306
• Court: North Carolina Supreme Court
• Parties: State on relation of SARAH BRIGGS v. DAVID SMITH, Adm'r.

83 N.C. 306

State on relation of SARAH BRIGGS

v.DAVID SMITH, Adm'r.

Supreme Court of North Carolina.

June Term, 1880.

CIVIL ACTION tried at Spring Term, 1880, of DAVIDSON Superior Court, before Buxton, J.

The facts appear in the opinion. The plaintiff appealed from the judgment of the court below.

Mr. W. H. Bailey, for plaintiff .

Mr. M. H. Pinnix, for defendant .

SMITH, C. J.

In answer to the complaint, containing two counts, one charging a breach of the intestate's guardian bond and the other seeking to impeach and set aside an alleged settlement of his administration of the trust fund, after the majority and marriage of the relator, the defendant as his administrator relies on the said settlement and a receipt then given and the bar of the statute of limitations to both claims. The other controverted matters being reserved for the consideration of a jury, should one become necessary, the parties by consent submit to the court to find the facts upon which rests the defence under the statute and to determine the law applicable thereto. The facts so found are as follows:

The defendant's intestate became guardian to the relator and executed the bond in suit on August 15th, 1863. The relator arrived at full age in November 1869, and was married on April 14th of the next year. She had the settlement with the intestate and gave him the acknowledgment referred to on May 5th, 1870. The intestate's final account of administration of his guardianship was returned to the probate judge and audited and filed on the day of the settlement with the ward. The guardian died in March 1875, and this action was begun on March 8th of the following year. Upon these facts the court being of opinion that the action was barred gave judgment for the defendant and the relator appealed.

The cause of action, being the non-payment to the relator of what was due on her arriving at full age, accrued after the adoption of the code of civil procedure and is governed by the limitations therein prescribed. Sec. 16.

If there had been no settlement, the action on the bond is within the six years allowed after the auditing of the final account, by section 33. But the settlement, admitted to have been made and relied on by the defendant, is an obstacle in the way of a recovery upon the bond so long as it remains and can be removed only by impeachment for fraud in fact or implied from the fiduciary relation subsisting between the guardian and his ward, as the plaintiff undertakes to do. The time within which this may be done is by several adjudications and C. C. P. restricted to the period of three years. Wheeler v. Piper, 3 Jones' Eq., 249; Whedbee v. Whedbee, 5 Jones' Eq., 392; Spruill v. Sanderson, 79 N. C., 466; C. C. P., § 34, (9). The settlement however took place after the relator's marriage, and the statute does not run against her because of her coverture. Section 42. While it results from the legal...