161 Mass. 418 | Mass. | 1894
This is an action against the administrator of a surety on a trustee’s bond. The breach of trust which was the source of the trouble is that which was considered in Nichols, appellant, 157 Mass. 20, and is not disputed. It took place in 1886. The administrator’s bond was approved on February 3, 1890. The present suit was not begun until October 24, 1892, . and it is argued that the action is barred by the special statute of limitations. Pub. Sts. c. 136, § 9. Whether it. is so or not depends, of course, on when the right of action on the trustee’s bond accrued. Ibid. 5 13.
The case of State v. Henderson, 54 Md. 332, relied on by the defendant, has no bearing upon the question before us. What was decided by the majority there was that on a guardian's obligation to exhibit a final account and to deliver up the property upon his ward’s coming of age, the statute of limitations began to run when the ward came of age, and that there was not a new breach if an account was passed at a later date and there was a subsequent failure to deliver up the property. If the trustee had resigned before the defendant was appointed administrator, and had not accounted until September, 1892, this decision might have some relevancy, that is, it might bear on the construction of the fourth condition; but it throws no light on the relation of the fourth condition to the second. Compare Cobb v. Kempton, 154 Mass. 266, 269. People v. Seelye, 146 Ill. 189, 208.
It is argued further, that the conduct of the beneficiaries has exonerated the sureties. To this it is enough to answer, that the judge who tried the case found the other way, and that we cannot say that he was wrong. The facts agreed are not a case stated with no power to draw inferences, as in Old Colony Railroad v. Wilder, 137 Mass. 536, 538. Right was reserved to either party to show any further facts, and this could be done as well by inference from the facts admitted as by independent evidence. But there is nothing in the agreed facts which warrants an argument that the beneficiaries misled the sureties in any way. See Watertown Ins. Co. v. Simmons, 131 Mass. 85. Their conduct in buying in the property at the foreclosure sale seems to have been for the benefit of all concerned by preventing a sacrifice, and to have been based on the false representations of the trustee. So far from there having been any election to confirm the investment, the beneficiaries seem to have repudiated it as soon as they knew the facts. Nichols, appellant, 157 Mass. 20, 23. It is not necessary to consider whether there are other answers to the argument. See further White v. Weatherbee, 126 Mass. 450, 452 ; Braiden v. Mercer, 44 Ohio St. 339 ; Stovall v. Banks, 10 Wall. 583.
Judgment for the plaintiff.