10 S.E. 148 | N.C. | 1889
This cause was before the Supreme Court at Fall Term, 1884, upon an application to annual the proceeding for partition and the sale of land made to that end, upon the ground of numerous assigned defects and irregularities therein, which was denied and the validity of the proceeding upheld. The cause was remanded for an inquiry "as to the payment of the purchase money and the manner of its disposition," (76) of which this Court was not then satisfied. Howerton v.Sexton,
The act declares, further, that its provisions "shall apply to causes now pending in the Supreme Court."
This removes the objection growing out of the delay in giving the security, and requires us to refuse the motion to dismiss.
While both parties complain of the overruling of their several exceptions, and the plaintiffs of the sustaining of the defendant's exceptions in part, we deem it most convenient to enter upon a consideration of the entire subject matter in controversy, and dispose of both appeals at once.
1. The defendant's exception is pointed mainly to findings of fact which, as the order of reference, made without objection, and transferred to the referee the determination of issues of fact as well as of law, substituting him in place of both judge and jury, are conclusively determined in the court below. This has been repeatedly decided. Barcroftv. Roberts,
There is in the plaintiffs' sole exception to the adverse ruling, one involving a question of law which we are required to notice and dispose of, and that is the payment of the share of Sallie B. Draper to B. F. Draper as her guardian.
There is no controversy as to the validity of an order committing to him the trust of the guardianship, but objection is taken to his receiving her share of the fund, while the statute then in force (Bat. (84) Rev., chap. 84, sec. 17) requires the shares belonging to "an infant, a married woman, non compos, imprisoned or beyond the limits of the State." . . . "to be so invested or settled that the same may be secured to such party or his real representative." Code, sec. 1908. *85
The answer to this exception is found in the judgment that the proceeds of sale be paid over to the several parties, tenants in common, as they were "entitled to the land according to law," and, of course, this was a direction to pay over the shares of infant owners to their guardian, who represents them, and such, we believe, is not only consonant with the general practice in the construction of the statute, but a correct interpretation of its meaning. For such delivery to a guardian who has given bond is a settling, and the share "is secured to such party or his real representative."
And so it is recoverable by the real representative, in case of death, in an action upon the guardian bond, as decided in Allison v. Robinson,
Certainly a payment to the guardian Draper was rightful and proper, as the only party entitled to receive his wife's share, as her guardian, and an acquittance of the defendant, who had assumed the place of purchaser.
This disposes of the plaintiff's exception, and we now proceed to consider those of the defendant.
His first two exceptions, which, in effect, exonerate the defendant from liability for the share of W. B. Howerton, are sustained and the other five overruled. These may be grouped in one general complaint, that the defendant is charged with the payment of any sum to W. F. Howerton, expanded into several particulars, to-wit:
1. That B. F. Draper is not declared the legally appointed guardian to the infant, and as such entitled to recover his share.
2. Because the defendant is held to be derelict in not inquiring (85) fully into the manner of the alleged appointment before making such payment to him.
3. For that he was negligent in his duty as guardian ad litem, in not seeing that a proper order for the distribution of the fund was made.
The essential inquiry in disposing of these matters relates to the legality and regularity of the action of the clerk in appointing the guardian of W. F. Howerton, and its sufficiency to authorize his reception of the infant's share and giving effectual acquittance to the defendant.
The referee in his report sets out the order of appointment which is full and explicit, conferring upon the guardian all the rights incident to the appointment made of the guardian to both infants.
It invests the defendant with all the powers incident to the trust and necessary in taking into possession and managing the estate of each, and nothing in its form awakens suspicion, or is calculated to cause distrust. When the defendant gave his notes to Draper, the latter *86 assured him of his being appointed guardian, both to Sallie B. and W. F. Howerton, and when he paid his notes the letter of appointment was exhibited, and the defendant fully believed him to be guardian. With these findings, notwithstanding the irregularity of the appointment, which was unknown to the defendant, we think the defendant, acting in entire good faith, was warranted in recognizing the appointment and making a payment. He had a right to assume that the appointment was regularly made with an observance of the requirements of law, and with the full security of the bond given for the faithful discharge of the trust attaching thereto. Furthermore, we are disposed to hold the appointment itself effectual, for it is made in proper form, and the defect lies in the omission to take the bond, with surety, of the defendant, an omission not affecting its validity, but subjecting (86) the clerk to the consequences of such neglect.
The giving the bond, though required, is not essential to the efficiency of the act of appointment itself, and this principle is established in several cases where the letters of administration were granted on giving the proper bond, when none was, in fact, given.Hoskins v. Miller,
Judgment will be entered according to this opinion, in favor of defendant.
Affirmed on plaintiffs' appeal. Error on defendant's appeal.
Cited: Batchelor v. Overton,
