Pattison v. Clingan

• Decision Date: 09 November 1908
• Docket Number: 13,439
• Citation: 47 So. 503,93 Miss. 310
• Court: Mississippi Supreme Court
• Parties: MARIA PATTISON DUNN, ET AL. v. JOHN W. CLINGHAN, ET AL

47 So. 503

93 Miss. 310

MARIA PATTISON DUNN, ET AL. v. JOHN W. CLINGHAN, ET AL

No. 13,439

Supreme Court of Mississippi

November 9, 1908

FROM the chancery court of, first district, Hinds county, HON. G GARLAND LYELL, Chancellor.

Mrs Dunn and others, appellants, were complainants in a suit upon a guardian's bond in the court below; Clinghan and others, appellees, sureties on the bond, were defendants there. From a decree in defendants' favor, predicated of the five years statute of limitation, Code 1892 § 2738 (Code 1906, § 3098), applicable to such suits, the complainants appealed to the supreme court. The facts are fully stated in the opinion of the court.

Judgment reversed and cause remanded.

Potter & Thompson, for appellants.

Before the enactment of Code 1892, § 2738, the period of limitation on a guardian's bond was the general six years statute The court will note that Code 1880, § 2107 provided that "The powers and duties of every guardian of a minor over the person and estate of his ward, shall cease and determine when the ward shall arrive at the age of twenty-one years, or be married, being over the age of eighteen years; and in either event he shall forthwith deliver to the ward, all the property of every description of the ward in his hands, and on failure, shall be liable to an action on his bond." Under this section, a cause of action accrued at all events on the arrival of the ward at the age of twenty-one years, the guardian failing to render proper account. The six years statute of limitations, the statute then in force, reads as follows: "All actions for which no other period of limitations is prescribed, shall be commenced within six years next after the cause of action accrued, and not after." In other words the law under the Code of 1880 provided that suits on a guardian's bond should be brought within six years after the ward became twenty-one years of age, and not after; the saving clause in favor of minors making the statute run against married and unmarried wards alike from twenty-one years of age.

The only change made by the enactment of Code 1892, § 2738 same being Code 1906, § 3098, was to change from a six years' to a five years' statute of limitations. If this be so, the decisions under the old statute with reference to the time when the statute begins to run are applicable under the recent statutes.

If, as we contend, the statutes of limitations of the Code of 1892 and the Code of 1906 with reference to guardian's bonds, is subject to the same exceptions that the former statute of limitations was subject to, then without doubt this case must be reversed, for it is well settled in the eases of Nunnery v. Day, 64 Miss. 457, 1 So. 636; and Bell v. Rudolph, 70 Miss. 234, 12 So. 153, that the statute of limitations does not run against a ward in favor of either principal or surety, until after the guardian has made a final account and settlement of his guardianship with the proper court.

It was undoubtedly the idea of the chancellor in rendering his decree in this case, that Code 1892, § 2738, same being Code 1906, § 3098, repealed the law as announced in the cases of Nunnery v. Day, and Bell v. Rudolph. We are at a loss to account for the learned chancellor's construction of this statute. The old law and the new law alike provide that the statute of limitations shall begin to run when the ward becomes twenty-one years of age. It was provided by the old statute that the statute of limitations should begin to run from the time a cause of action accrued and the cause of action accrued when the ward arrived at the age of twenty-one years. Under this statute it was provided that the ward could bring his cause of action within six years after that time and not after. Under the new statute, it is provided that he can bring his cause of action within fire years after the ward becomes twenty-one years of age, and not afterward. We can see no distinction in the statutes as to their time of commencement, the only difference we find is a change from six to five years.

Certainly if the legislature had intended to repeal a rule of law, so well established in our jurisprudence, as the rule laid down in the cases of Nunnery v. Day and Bell v. Rudolph, it would have adopted some method of making its intention known. There is no repealing clause to this statute. And while it is the well established rule in this state that repeals by implication are not favored, yet were the rule vice versa if repeals by implication were highly favored, we cannot see how a court could hold that the statute of limitations in question repealed the rule with reference to the commencement of actions on a guardian's bond, as announced in the cases of Nunnery v. Day, and Bell v. Rudolph. There is not a word in this statute, construe it in a light most favorable to a repeal of the above mentioned rule, that even intimates that such repeal is intended.

We cannot think it was the intention of the legislature to change the very salutary rule of law that provided that a guardian could not plead the statute of limitation until he had accounted with his ward. We cannot think it was the intention of the legislature to place a premium on fraud and dishonesty, in a relation of such sacred trust and confidence as that existing between a guardian and his ward, and at the same time to make it inciting and attractive for an unfaithful guardian to disregard the statute of the state that requires him to come into the proper court, and make accounting, and turn the ward's property over to him. It will be remembered, as a rule, that guardians are those in whose integrity wards most implicitely rely. As a rule wards without question accept the word of a guardian. Even in cases where the ward knows of the existence of the estate, and of the guardianship, it would be an easy matter for the guardian to put off settlement with his ward, from time to time, until the ward becomes barred by the statute of limitations. If the law is as the chancellor in the court below held, then it is only necessary for a guardian to hold his ward's property for five years after the ward becomes twenty-one years of age, and the title to the ward's property would be absolutely in the guardian, although such guardian had been holding the ward's property permissively, and not adversely. We contend that such is not the law. Why a different rule for guardians of minors less stringent on the guardian than other fiduciaries, administrators, executors, agents, etc?

Under the law as decided in the cases of Nunnery v. Day and Bell v. Randolph, the surety on a guardian's bond who of his own free will and accord has obligated himself to stand sponsor for the faithful performance of the guardian's duties can only suffer loss from his own negligence, and failure to do his duty. He can bring the guardian into court when the ward has attained his majority and require him to account with his ward, and thus relieve himself of any further liability. If he fails to do this, and the guardian is unfaithful, the surety suffers from his own negligence, and ought not to be heard to complain.

The instant that Code 1892, § 2738, became the law, it was knit and interwoven into the framework of the common law. It became at once subject to the same exceptions that other statutes ejusdem generis are subject to; it must be interpreted according to the established rules of construction of statutes and its meaning must be gathered from an application of such rules of interpretation to the wording of the statute. It is true that it is the purpose of the court to find the intention of the legislature, but this intention must be found by following long established rules.

We find that the relation existing between the guardian and the sureties on the one hand and the ward on the other is that of an express trust. This trust does not grow out of the relationship of the guardian and the ward, nor does it cease when that relation terminates. This express trust is created by the terms of the bond which obligates the guardian to account and turn over the property. And there is no rule of law better established in the state of Mississippi than the rule that the statutes of limitations do not run against express trusts until some adverse position is taken by the trustee, or the relation is terminated otherwise. Wood on Limitations, § 200, p. 456; Perry on Trusts, Vol 2, § 863 and 864; Gayden v. Wrenn, 1 Howard, 365; Murdock v. Hughes, 7 Smed. & M. 219; Siggins v. Head, 31 Miss. 426; Westbrook v. Munger, 61 Miss. 330; Cooper v. Cooper, 61 Miss. 676; Nunnery v. Day, 64 Miss. 457, 1 So. 636; Belt v. Rudolph, 70 Miss. 234, 12 So. 153; Stanton v. Helm, 87 Miss. 287, 39 So. 457. What is there in the statute of limitations under consideration that takes it out of the rule above laid down and so well established in the state of Mississippi with reference to statutes ejusdem generis?

The trust relation created by the bond being an express trust, under the common law the statute of limitations would not begin to run until the termination of the trust relation and as statutes are to be construed in reference to the principles of the common law it is not to be presumed that the legislature intended to make any inovation on this common law rule unless such inovation is clearly expressed. Edwards v. Goulding, 38 Miss. 118; Hopkins v. Danridge, 51 Miss. 55. We cannot see that the legislature has even intimated any intention to change this common law rule with reference to the beginning of the statute to run on a guardian's bonds. We do not think the wording of the statute of limitations under consideration materially different from the statute of limitations under which Belle v. Rudolph and Nunnery v. Day, were decided.

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