| N.C. | Jun 5, 1845
The plaintiffs allege in their bill, that in the year 1821, Berryman Hicks was, by the County Court of Rutherford County, duly appointed the guardian of the infant children of Richard Blanton deceased, and that they are such children or their legal representatives; and that the said Hicks as such guardian, gave his bond with the defendants his sureties therein, dated 16 April, 1823; that said Hicks took into his possession the property of his wards, and several different times renewed his guardian bonds. The bill further shows that Hicks was, by the proper tribunal, removed from his guardianship in 1827, and one George Blanton appointed in his place, who, soon thereafter, instituted a suit at law against the former guardian and his sureties, the present defendants on the bond of 1827, in which he failed, for the reason that the sureties thereto were justices of the peace of Rutherford County, at the time the bond was executed, and which said bond was for that reason void at law. The bill charges, that although the bond is void at law, it is good in equity, and prays it may be set up against the defendants in their favor, and they be decreed to account with and pay over to them their (590) respective shares of the estate, which came to the hands of their former guardian, Berryman Hicks, or which ought to have come. The bill further shows that Hicks removed beyond the limits of this State, is dead, intestate and insolvent, and has no representative.
The defendants, by their answer, admit the appointment of Berryman Hicks, as stated in the bill, and that the names of the wards are correctly set forth. They state, that in 1821, when Berryman Hicks was first appointed guardian, he gave *465 a bond with the defendant, Achilles Durham, and one Burwell Blanton, as his sureties, and that they are entirely solvent, and all able to pay; and the plaintiffs have against them full and complete redress at law; that the bond which they gave in 1823 is void at law for the reason assigned, but that there was no mistake in the matter, as it was known to the Court at the time that the sureties were magistrates of the county. They further allege, that in the year 1826, the guardian Hicks renewed his guardian bond, and gave as his surety, one George Champion, and they insist, if they are answerable in equity for the guardian Berryman Hicks, that the said George Champion and Burwell Blanton, the surety to the bond of 1821, ought to have been made parties defendants. They further insist that a judgment was obtained in Rutherford Superior Court, at the — term thereof, by George Blanton, after he was appointed guardian of the plaintiffs, part of which was raised by a sale of the property of Hicks, and that they urged the then guardian, Blanton, to take a ca. sa. against the body of Hicks, which he refused. They rely upon and claim the benefit of the statute made for the protection of sureties to guardian bonds.
Upon the coming in of the answers, replication was taken, and the cause set for hearing and transmitted to this Court. The defendants have taken no evidence to sustain the allegations of their answer. Among the papers of the cause, we find copies of what are stated to be the guardian bond, given by Hicks in 1821, (591) and also in 1827. These papers are certified by the Clerk of Rutherford County Court, as copies of the bonds filed in his office. We know of no law authorizing the Clerk to certify any paper, and thereby authenticate it under his private seal. These papers do not profess to be authenticated as records, under the seal of the Court. A guardian bond is not a record, and, before it can be used as evidence in any case, it must be proved like all other papers of a similar kind, by the subscribing witness, if there be one. The bill states, there were several other guardian bonds given by Berryman Hicks, but it does not tell whether the sureties to them were or were not the same with those, who executed the bond of 1823. The defendants allege they were different, but have furnished us with no proof of the fact.
The same answer may be given to the protection sought by *466
the defendants, under the statutes of limitations. The answer does not set forth when the children came of age, nor is the defective statement aided by anything in the bill, nor is there any evidence on the subject. The main, indeed the only, question raised in the case is, as to the right of the plaintiffs to come into this Court to set up against the defendants a bond, which is shown by the bill, and admitted by the answer to be void at law. This question was decided by this Court in all its length and breadth in Armstead v. Bozman,
It is further stated in the answer, that the last guardian, George Blanton, recovered a judgment against Hicks, and that by the sale of the property of the latter, a part of the judgment was discharged, and the whole would have been paid by Hicks, if Blanton had taken out a ca. sa. against him, as he was requested to do. It is sufficient to say, this is a matter which does not affect the right of the plaintiffs to call upon the defendants, nor do the defendants furnish any evidence of their allegation. Before the master, when the accounts are taken, the defendants will be at liberty to show any payments, which have been made by Hicks, or raised out of his property.
Unquestionably, all the sureties of Berryman Hicks, whether parties to the same bond or to different bonds, ought to have been made parties to this suit, that the Court, in its final decree, might have adjusted the loss between them. As the case stands we do not know that there are any other persons interested in the matter, but those who are before the Court. The only effect, however, will be to throw the whole burthen in the first instance on the defendants, leaving them to their remedy against the sureties to the other bonds, if there be any.
The case must be referred to the master to take an account *467 of the estate belonging to the plaintiffs, which came to the hands of their guardian, Berryman Hicks, and of his administration of the same.
PER CURIAM. DECREED ACCORDINGLY.
Cited: Jones v. Blanton,
(593)