Turner v. Turner

• Decision Date: 04 April 1887
• Citation: 96 N.C. 416,2 S.E. 51
• Court: North Carolina Supreme Court
• Parties: TURNER v. TURNER.

96 N.C. 416

2 S.E. 51

TURNER

v.TURNER.

Supreme Court of North Carolina.

April 4, 1887.

Appeal from superior court, Iredell county.

Armfield & Armfield and D. M. Furches, for plaintiff.

M. L. McCorkle, for defendant.

MERRIMON, J.

It appears that on the sixteenth day of November, 1858, Benjamin Turner was appointed to be the guardian of his infant daughter, M. D. Turner, and executed his bond, as such guardian, in the sum of $3,200, with J. R. B. Adams and H. Nichols as sureties thereto; and on the nineteenth of May, 1863, he executed his second bond as such guardian in the sum of $10,000, with Henry Turner and A. P. Sharp as sureties thereto. Afterwards, on the twenty-first of August, 1866, the guardian above named was removed by order of court, and on the same day J. M. Turner was appointed such guardian in his stead, and gave his bond as such in the sum of $3,500, with Henry Turner and Martin Gaither as sureties thereto. Afterwards, on the twenty-third day of October, 1871, Benjamin Turner, the first above-named guardian, paid to his successor, guardian above named, for his said ward, $1,656.30, and never paid him any other sum of money or other thing on her account. The ward, M. D. Turner, intermarried with Harry Burke on the fourth of March, 1875, and she attained her majority on the seventh of March, 1877. She and her husband brought her action on the twenty-seventh of October, 1877, against her second and last-named guardian, and his sureties upon his guardian bond, alleging breaches of the condition thereof, and at the August term of 1884, of the superior court of the Iredell, she obtained a judgment in that action for $3,500, with interest from the eleventh day of August, 1884, and for $163 costs. Of this judgment the sheriff collected from the guardian, J. M. Turner, $200, and from the surety, Martin Gaither, $100, January 7, 1885. In August of 1883, Henry Turner paid the said ward $1,200, which sum was paid before the judgment mentioned was obtained, with the understanding that it should be credited on it when obtained. On the last-mentioned day, the said ward and her husband assigned this judgment to J. Chap. Turner and Henry Turner. Surety having died on the seventeenth day of May, 1883, his administrators paid the balance of it. It appears that the second guardian became and was insolvent on and ever after the fourth day of June, 1881; and the sureties, Martin Gaither and Humphrey Nichols, became and were insolvent after the judgment mentioned was obtained; and Benjamin Turner, the first guardian, is also insolvent.

The first guardian, Benjamin Turner, did not account sufficiently and fully with his successor guardian, J. M. Turner, in respect to his ward's property in his hands. The ward and her husband, on the twenty-sixth of January, 1885, brought their action in the court above named against the first-named guardian, and the sureties to his guardian bond, given on the sixteenth of November, 1858, alleging breaches of the condition thereof, in that he had not accounted to the second guardian as he ought to have done, and had property and effects of the ward, etc., and obtained judgment at May term of 1886 of [2 S.E. 52] the court. The second guardian, J. M. Turner, suing as such guardian in the name of the state on his relation, brought this action in the same court, on the twenty-fifth day of February, 1880, against the former guardian, Benjamin Turner, and the sureties to both his bonds as guardian first above mentioned, alleging as his cause of action breaches of the condition of those bonds, in that the said former guardian had not accounted with him in respect to the property, money, and effects of his ward as he ought to have done, and he demanded judgment for the amount of the funds, respectively, for an account of the guardianship, etc. Pending this action, the relator therein, the said second guardian, J. M. Turner, died intestate on the seventeenth day of March, 1885, and J. J. Clendenin was appointed administrator of his estate. Afterwards, at the February term of 1886 of said court, the last-named administrator was made party plaintiff in this action instead and in place of his intestate, and filed his complaint therein, adopting the complaint of his intestate, alleging further, that the said ward and her husband had, since the bringing of this action, recovered the judgment first above mentioned against his intestate for moneys and effects received by the defendant Benjamin Turner, while he was so guardian for his ward, etc.; and he further demanded judgment for the amount of the judgment so obtained against his intestate, etc.

To this supplemental complaint the defendant Sharp, a surety, demurred, assigning as grounds of demurrer- First, that “the plaintiff, as administrator of the deceased guardian, cannot maintain an action on the bond of the former guardian for a fund due his ward, but the action should be brought by the ward if she is now of age, or in her name by the second guardian if she is still a minor. The administrator cannot maintain an action for the fund which his intestate ought to have collected.”

Subsequently the court made this order: “This cause coming on...