83 N.C. 306 | N.C. | 1880
The facts appear in the opinion. The plaintiff appealed from the judgment of the court below. In answer to the complaint, containing two counts, one charging a breach of the intestate's guardian bond and the other seeking to impeach and set aside an alleged settlement of his administration of the trust fund, after the majority and marriage of the relator, the defendant as his administrator relies on the said settlement and a receipt then given and the bar of the statute of limitations to both claims. The other controverted matters being reserved for the consideration of a jury, should one become necessary, the parties by consent submit to the court to find *307 the facts upon which rests the defence [defense] under the statute and to determine the law applicable thereto. The facts so found are as follows:
The defendant's intestate became guardian to the relator and executed the bond in suit on August 15th, 1863. The relator arrived at full age in November 1869, and was married on April 14th of the next year. She had the settlement with the intestate and gave him the acknowledgment referred to on May 5th, 1870. The intestate's final account of administration of his guardianship was returned to the probate judge and audited and filed on the day of the settlement with the ward. The guardian died in March 1875, and this action was begun on March 8th of the following year. Upon these facts the court being of opinion that the action was barred gave judgment for the defendant and the relator appealed.
The cause of action, being the non-payment to the relator of what was due on her arriving at full age, accrued after the adoption of the code of civil procedure and is governed by the limitations therein prescribed. Sec. 16.
If there had been no settlement, the action on the bond is within the six years allowed after the auditing of the final account, by section 33. But the settlement, admitted to have been made and relied on by the defendant, is an obstacle in the way of a recovery upon the bond so long as it remains and can be removed only by impeachment for fraud in fact or implied from the fiduciary relation subsisting between the guardian and his ward, as the plaintiff undertakes to do. The time within which this may be done is by several adjudications and C. C. P. restricted to the period of three years. Wheeler v. Piper, 3 Jones' Eq., 249; Whedbee v. Whedbee, 5 Jones' Eq., 392; Spruill v. Sanderson,
While then in the present aspect of the case we sustain the ruling of the court as to the count on the bond and the entry of the nol. pros. as to the surety confines the action to the liability of the guardian alone, we think the relator may proceed with her second alleged cause of action and that the ruling as to this is erroneous.
It is proper we should express our disapproval of the mode of proceeding adopted, whereby instead of a trial of *309
all the issues and a final disposition of the whole controversy, a part of the issues is separated from the others to be passed on, not decisive of the result, and the trial has again to be gone over with. All the issues should be settled and points of law reserved with consent, so that the decision may be final. The policy of the code is to secure an early and complete disposition of the cause. This suggestion has been more than once heretofore made, Kirby v. Mills,
Error. Venire de novo.