Lippard v. Troutman

• Citation: 72 N.C. 551
• Parties: STATE on the relation of PETER LIPPARD and wife v. HENRY TROUTMAN, Guardian, and others.
• Decision Date: 31 January 1875
• Court: United States State Supreme Court of North Carolina

72 N.C. 551

STATE on the relation of PETER LIPPARD and wife

v.HENRY TROUTMAN, Guardian, and others.

Supreme Court of North Carolina.

January Term, 1875.

The Act of 1866-'??67, chap. 18, sec. 1, relates only to debts and causes of action arising out of new matter, and transactions subsequent to the 7th day of May, 1865, and was not intended to embrace old debts or transactions occurring before that date, out of which causes of action might arise after that date. Therefore, where in an action on a guardian bond, the plaintiff, a feme covert, became of full age in 1866, married in 1869, and instituted the action in 1874: Held, that the statute of limitations did not bar the right of action.

The provision of the C. C. P., allowing a feme covert to sue or be sued concerning her separate property does not remove the disability of coverture, so as to allow the statute of limitations to bar a feme covert's right of action.

The right of suing alone is a privilege which may be used for the advantage of a feme covert, but a failure to exercise this privilege, eannot operate to her prejudice.

( Johnson v. Winslow, 63 N. C. Rep, 552; Plott v. Western N. C. Railroad Company, 65 N. C. Rep. 74; Harris v. Harris, 71 N. C. Rep. 174; Shaler v. Millsapps, 71 N. C. Rep. 297, cited and approved.)

CIVIL ACTION on a guardian bond, tried at Fall Term, 1874, of the Superior Court of IREDELL county, before his Honor Judge Mitchell.

The facts as agreed by counsel, are substantially as follows:

The defendant, Troutman became guardian for the feme plaintiff in 1853, entering into bond in the sum of $500, with one Kyles, and Alexander as sureties. Alexander is dead, and the defendant, Stephenson, is his administrator. A nol. pros. was entered as to Troutman and Kyles, they being notoriously insolvent, the action standing against Stephenson, the administrator, alone.

It was in evidence, from a report of a Commissioner, that Troutman had in his house property or money of his ward, or ought to have, of greater value than the amount of his bond. The defendant, Stephenson, relied upon the statute of limitations in favor of sureties. The evidence was that the feme plaintiff became of age on the 21st of March, 1866; that she married the other plaintiff in 1869, and that this action was instituted in January, 1874.

The defendant's counsel asked his Honor to charge the jury that the plaintiffs were not entitled to recover in this action, being barred by the statute in favor of sureties; and at all events, that the husband was so bound.

His Honor thought otherwise, and so charged, that neither the feme plaintiff nor her husband was barred from a recovery on account of the statute of limitations. To this the defendant excepted.

There was a verdict and judgment for the plaintiffs; from which the defendant appealed.

Scott & Caldwell, for appellant .

Furches, contra .

SETTLE, J.

This is an action upon a guardian's bond, executed in 1853; and the defence is the statute of limitations in favor of sureties. The feme plaintiff became of full age on the 1st of March, 1866, was married in 1869, and with her husband commenced this action in 1874.

It is admitted that the statute of limitations was suspended by a series of acts, from the 11th day of May, 1861, until the 1st day of January, 1870. Johnson v. Winslow, 63 N. C. Rep., 552; Plott v. Western N. C. Railroad Company, 65 N. C. Rep. 74. But the defendant says the act of 1866-'67, chap. 18, sec. 1, so explained and qualified the act of 1866-'67, chap. 17, sec. 8, as to open the Courts to plaintiff, since the 1st day of May, 1865, and cause the statute to run and bar this action.

But it is evident that the act relied upon for this purpose, relates only to debts and causes of action arising out of new matters and transactions subsequent to the 1st day of May, 1865, and was not intended to embrace old debts or...