72 N.C. 397 | N.C. | 1875
The defendant, Murchison, was surety on the guardian bond of the plaintiff's guardian.
The plaintiff ward was supposed to be entitled to an interest in the estate of his deceased father. And at the sale of the estate of his father, his guardian bought property for himself, and gave his bond therefor, with surety, to the administrator. And subsequently, the guardian took his bond back from the administrator, and gave the administrator a receipt as guardian for the amount of the bonds as so much money for his ward. And the same was true of some other bonds which he had given the administrator for the hire of slaves. The guardian died insolvent. And the only point made in this Court is, whether the non-payment of that amount by the guardian to his ward, is a breach of his guardian bond for which the defendant is liable as surety?
The defendant insists that he is not liable, for two reasons:
1. Because, in fact, the guardian did not receive any money, and thereby he was the less able to pay the ward, and save the defendant harmless. To this it is answered that if he did not receive money, he received money's worth, the property bought at the sale, and also his own bond which he would have had to pay.
And again, a guardian is liable not only for what he does receive, but for what he ought to receive; and if he ought to have received the amount in money and did not, but took something else, his own bonds, in the place of money, he and his sureties are liable.
2. Because, in fact, there was nothing due the ward from the estate of his father; for, although at that time it was supposed that that amount would be due the ward, yet, subsequently, the estate proved to be insolvent.
This cannot avail the defendant. If an administrator chooses to pay over to a distributee, it is only under peculiar circumstances that he can be heard to say that nothing was due, and recover it back. But here the administrator makes no complaint; and surely no one else can. *402
It is proper to remark that there is no allegation that any fraud was intended between the administrator and guardian, for the purpose of affecting the defendant. If there had been it would have presented a different case. But the transaction was a fair one, and was for convenience only. The guardian was solvent at the time, and was the grandfather of the ward, and he with the ward, were about removing from the State.
There is no error.
PER CURIAM. Judgment affirmed.
