Mason v. Johnson

13 S.C. 20 | S.C. | 1880

The opinion of the court was delivered by

McIvbr, A. J.

The only questions raised by this appeal are :

1. Whether the Circuit judge erred in sustaining the action of ■the referee in allowing the defendant to amend his answer at the ■opening of the reference, by adding thereto the plea of the statute ■of limitations. 2. Whether such plea was a bar to the action.

Referees have the same power to allow amendments to any pleading as the court has, {Code, § 296,) and, ordinarily, a motion for leave to amend is addressed to the discretion of the court and is not appealable, provided the amendment is such as it is within the power of the court to grant. Chichester v. Hastie, 9 S. C. 330; Richtmeyer v. Remsen, 38 N. Y. 206. While at one time it seemed to be thought by the courts of New York that they had no power, upon the trial, to allow the defendant to amend by pleading the statute of limitations, the latter and more approved opinion is otherwise. 4 Wait Pr. 652; Gilchrist v. Gilchrist, 44 How. Pr. 317.

The next inquiry is, whether the statute was a bar to the action. “ If a trustee does an act purporting to be a termination of the trust; if he has a settlement which is intended to be in full; if he settles as to part and claims the residue in his own right; if he denies the trust in the presence of the cestui que trustr these acts, or any of them, will so far disturb and dissolve the strictly fiduciary relations between the trustee and his cestui que trust as that the statute of limitations will commence to run from the date of such acts.” Brockington v. Camlin, 4 Strob. Eq. 189; recognized and approved in Long v. Cason, 4 Rich. Eq. 63; and again in Colburn v. Holland, 14 Rich. Eq. 241. Now in this case the settlement made in the office of the judge of probate, between the guardian and his ward, several months after the latter had attained his majority, followed up by the order of the judge of probate for the final discharge of the guardian, unquestionably indicated, in the most unequivocal manner, the purpose of the guardian to terminate the fiduciary relations previously existing, and as this action was not brought within the statutory period, thereafter it must be-held to be barred.

Whether the Court of Probate had jurisdiction of an action brought by a ward, after attaining his majority, against his guardian for an account, was not considered by the court below, and is not before us for determination. For the validity of the bar of the statute does not rest upon the fact that a decree had been made by a court of competent jurisdiction, but simply upon the fact that there had been a settlement, which, if it had been made by a private individual as a mutual friend of, or an arbitrator between, the parties, would have given currency to the-statute, as it was an act purporting to be a termination of the trust, and so intended by the parties. This case differs from that of Renwich v. Smith, 11 S. C. 294, and other cases of that class, in the important fact that it did not appear, in that case, that the’ parties sought to be affected by it had any notice of the settlement or final return relied upon, while here the plaintiff was-present when the settlement was made, and was fully cognizant of the result.

The judgment of the Circuit Court is affirmed.

Willard, C. J., concurred.