State ex rel. Henderson v. Henderson

54 Md. 332 | Md. | 1880

Irving, J.,

delivered the opinion of the Court.

This suit was instituted by the appellant’s testatrix on the fifteenth day of July, eighteen hundred and seventy-eight, upon the bond of John S. Henderson, her father and guardian, dated the twentieth day of September, eighteen hundred and sixty-five. Henderson, the principal, and John W. Egnor, one of the securities, are before the Court; the other security was returned non est.

The narr. sets out that John S. Henderson was, by the Orphans’ Court of Cecil County, appointed guardian to Maria L. Henderson (appellant’s testatrix) and gave bond and security for the faithful performance of his duties as such guardian, and that John W. Egnor and one Alexander Hill were sureties on his bond. It then sets out the bond in substance, and alleges that after such appointment and the execution of his bond as guardian, he received into his hands large sums of money belonging to his ward, Maria L. Henderson, and that on the thirteenth day of November, 1867, John S. Henderson passed an account in the Orphans’ Court of Cecil County, of his receipts and disbursements on behalf of his ward, whereby after deducting all allowances for debts and commissions, it appeared that there was due the ward from her guardian the sum of seventeen hundred and thirty-eight dollars and forty-eight cents; that this account was passed by the Court; but that although often demanded the amount thus found due had never been paid. The defendants pleaded nine pleas. The first two were pleas of general performance; the third and fourth pleas of payment; the fifth was a plea of release; the sixth, accord and satisfaction, and the seventh, eighth and ninth, pleas of the Statute of Limitations. General replication was entered to all hut fhe fifth plea. So that four special replications were interposed, and special replications were also filed to the seventh, eighth and ninth pleas. To the second replication to the fifth plea, defendant demurred, and issue was joined on the rest. The view which a majority of the Court take of the questions arising upon the Statute of Limitations, makes it unnecessary to consider and decide the question raised by the demurrer. It also relieves us of passing upon the questions of evidence which are presented in the bills of exception.

The first question then necessary for us to examine arises on the third prayer of the plaintiff which was rejected by the Court. That prayer invoked the principle that when a party has been kept in ignorance of his rights by the fraud of the defendant, the Statute of Limitations shall not be permitted to run until such time as with reasonable diligence the plaintiff might have discovered the fraud.

Reliance is placed on the Act of 1868, chapter 357. This •act was the subject of construction by this Court in Wear vs. Skinner, 46 Md., 257, and in that case it was decided that this Act “ was passed for the purpose of enabling parties to set up the fraud of the defendant in a Court of law as well as in a Court of equity,” for the purpose of removing the bar of the Statute.

There was no error in the Court in rejecting the prayer, for it excluded from the consideration of the jury one most material element necessary to the protection which the Statute intended to secure, namely, that by ordinary ■diligence the fraud could not have been discovered sooner. Assuming that the prayer was free from this objection, we still think the Court right in rejecting it for want of sufficient proof to support it. The Court in Wear vs. Skinner, decides that where a fraud has been committed, no other distinct fraudulent act is necessary, but that concealment of the fraud is “in itself a fraud.” But the Court contemplated that there must be at some time conduct amounting to a fraud, the concealment of which would be a fraud, and relieve the party from the bar of the Statute. So long as that ignorance existed, or by reasonable, or, as the Statute says, “ ordinary” diligence, the fraud could.not be discovered. It is “the fraud” which the statute says is to be discovered. The concealment itself may be of such a character, by active means on the part of the defendant, as to be a fraud on the claimant; but the statute could not have intended that the bare omission on the part of a debtor to remind his creditor of his cause of action against him should be regarded as fraudulently intended to keep him in ignorance of his claim. If it were shown that the ward did not know her father was her guardian, and did not know that she had property in her guardian’s hands, that she was entirely ignorant on that subject till she was taken to the Register’s office for settlement, there would be some ground for holding that concealment under such circumstances was a fraud; but no such proof is here. This ward knew her father was her guardian, and that she had property. She had received money from him before the day of the settlement at the Register’s office on the 13th of November, 1861, and receipted for it to him. She so testifies herself. It was done, she says, at home, but the date of that transaction is not given. She was not therefore ignorant of her father being her debtor; and he had not concealed from her the fact of his indebtedness till the 13th of November, 1861, as the instruction left the jury to find might be the case. The question is, whether the ignorance of the plaintiff was the result of fraudulent concealment on the part of the guardian, and we see nothing in the proof to warrant a jury in finding fraud in that regard. It follows, therefore, that the Court was right in rejecting the third prayer of the plaintiff, and in granting the second and third prayers of the defendants applying to the same subject.

The only remaining question is, whether the Circuit Court was right in granting the first prayer of the defendants ? That prayer presents the question, when the Statute of Limitation begun to run, and from what time it is to be computed in this case ? The defendants insist that the Statute begun to run from the moment the ward reached eighteen years of age, when, by law, she was emancipated from her guardian. On the other hand, the plaintiff contends that Limitations did not begin to run until the guardian had passed his account in the Orphans’ Court. It is urged that, by the law, it was his duty to pass such account, and consequently his bond was bound till that duty was performed.

By the Code the Statute begins to run from the breach of the condition of the bond. When did the breach in this case occur ? Sec. 192 of Art. 93 of the Code provides thus : “ On a ward’s arrival at age, or on the marriage of a female ward, the guardian shall exhibit a final account to the Orphans’ Court, and shall deliver up, agreeably to the Court’s order, to the said ward, or to the husband, as the case may require, all the property of such ward in his hands, including bonds and other securities, and, on failure, his bond may be put in suit, and he shall he liable to attachment, and fine not exceeding three hundred dollars; and a female shall be of age at eighteen for the purposes of this section.”

This section is identically the same as the provision of the Act of 1198 on the subject, and commenting thereon in Green vs. Johnson, 3 Gill & Johns., Judge Dorsey says, “ the moment a ward is emancipated from the authority of his guardian, hy reaching the age prescribed by law, his cause of action is complete and the Statute of Limitations begins to run.” The reason assigned for this is, that instantly on his arriving at age “he is emancipated from the control of the guardian, and the trust ceases to be a subsisting trust by its own limitation.” In the text of Angel on Limitations, sec. 178, the same law and reason are laid down. From the moment the ward reaches the age when the law makes him free, what the guardian owes the ward becomes a debt for which he may immediately sue. All money due him and property belonging to him are from that moment legally demandable, and he may sue the guardian on his bond for its payment and delivery. The right of action being then “ complete,” the Statute begins to run from that time; So soon as the ward arrives at age, the guardian is hound to pass his final account and pay over. In the casé of a revocation of a guardianship and the appointment of a new guardian, the Code, Art. 93, secs. 187 and 189, provide for the allowance of “ a reasonable time ” by the Orphans’ Court to the guardian within which to pay over the money and deliver the property to the new guardian, and not till after the expiration of such appointed time, and neglect to comply with his duty may his bond be ordered to be put in suit by the new guardian. Sec. 192 makes no such provision for “reasonable time” or delay. It proceeds on the theory that the guardian knows when his ward will be of age, and that he will be ready when that time comes to make a full exhibit of all he has done as his guardian, and that he will be ready immediately to pay and deliver over to his emancipated ward. The law, therefore, directs that, “ on the ward’s arrival at age,” he shall pass his account and shall pay over. It was the guardian’s duty to pass that account then, -and his failure to do it was a breach of duty, for which he was liable to suit at once. So long as he delayed, it was not a neio breach, but a continuing default and a continuing breach. “On” means “at the time of,” says Webster, and Worcester says “immediately.” It cannot mean “ after ” except in the sense that the time immediately succeeding and “ in contact with ” the birth-day is such. This view is not believed to be, nor intended to be, in conflict with the rulings of this Court in Byrd vs. Crisfield, 44 Md., 503, nor of Griffith vs. Parks, 32 Md., 9, nor Thruston vs. Blackiston, 36 Md., 501.

The case of Byrd vs. Crisfield was a case of revocation of guardianship, and controlled by the sections already referred to on that subject. The case of Thruston vs. Blackiston was on a trustee’s bond, and wholly dissimilar to this. The case of Griffith vs. Parks was upon another question, and in no way involved the question of Limitation. It is well settled that, when the Statute once begins to run, no circumstance will stop its progress. Ruff’s Adm’r, d. b. n. vs. Bull, 7 H. & J., 14. If the theory of the appellant prevailed, the continued negligence of the guardian to pass his account, creates a new default by which he can get the full benefit of his suit, notwithstanding he has had a full right of action from the date that he came of age. The running of the Statute would thus be either stopped or its effects wholly avoided. The allegation in the narr. is not the allegation of a neglect to pass his account, but only a statement that at a particular time he did state an account by which a particular sum was found to be due which he has not paid over. That sum was due when the ward arrived at age, and the account could have been stated then, and ought to have been, and the ward could have sued and coerced the statement then, or have shown the amounts which passed into her guardian’s hands, and recovered without abatement, if the credits had not been claimed. But it is said that, by the Code, Limitations begin to run from the breach of the bond, and the breach for which this suit is brought is the non-payment over of the sum ascertained to he due on that accounting' eighteen months after the ward came of age. If there had been no account passed and suit had been brought, as was done, and on the trial the amount due had been established, there could he no contention that the Statute of Limitations did not begin to run from the time the ward reached legal age. If, therefore, the statement of the account makes any difference, we have the anomaly of a discharge of duty extending the period of liability. The law does not contemplate a different period from which the Statute shall run according as the breach may he assigned' or may actually be. There is no separate time as applicable to each breach. The action is one. The liability is one. The duty is one, though it involve the doing of several things. The Statute begins to run from the moment the ward is sui juris, and can enforce his rights against his guardian and his sureties for any of the defaults of the guardian, and get redress. The measure of his damages in any case would he all that was due him.

If the ward has slept on her rights, she must bear the consequences. The securities cannot suffer by it. Eo matter in what form the breach is alleged, the default will relate to the time when the duty of the guardian to finally account and pay over first attached, and the ward could sue in his own name. If such was uot the law, the Statute of Limitations would afford no protection to securities on guardian bonds. Just so long as the guardian saw fit to delay passing his final account, and the ward chose to indulge- and did not sue, the right of action would be preserved by the guardian going at any time and passing the final acconnt, notwithstanding the Statute of Limitations ; which, if suit had been brought without waiting for an account, would have run from the ward’s arrival at age. The passing of the account, no matter how long delayed, would have the effect to revive a right of action, perchance already barred, so that Limitations would then begin from the passin g of the account.

(Decided 1st July, 1880.)

It is plain, that as against sureties at least, that is not just and cannot be sound. We are of opinion, therefore, that in a suit on the bond of the guardian, the Statute begins to run from the day the ward arrives at age; and the Court below properly instructed the jury in granting the defendants’ first prayer. The proof when the ward reached legal age was all one way, and was conclusive of the case, under the instructions of the Court on the subject which we have approved; and the jury could not find otherwise than for the defendants. It is for this reason we are relieved from deciding on the other questions raised by the record. The judgment will he affirmed.

Judgment affirmed with costs.

Alvey, J.,

filed the following dissenting opinion:

In this case I must enter a dissent.

The bond sued on bears date the 20th of September, 1865 ; the female ward attained the age of eighteen years on the 3rd of May, 1866; the guardian stated his only and final account in the Orphans’ Court on the 13th of PTovember, 1867, showing the amount due the ward to be $1738.48 ; and this action was brought on the 15th day of July, 1878;—-within less than eleven years from the time of the passage of the account in the Orphans’ Court. The breach of the condition of the bond assigned, as the cause of action, is the non-payment of the money ascertained to he due by the account stated on the 13th of November, 1867.

By granting the first prayer on the part of the defendants by the Court below, and by the opinion of the majority of this Court, the Statute is declared to run as against the breach assigned, not from the time of stating the account in the Orphans’ Court, but from the day that the ward attained the age of eighteen years. To this I cannot agree.

It has been expressly decided by this Court, and, if there be any stability in decisions, it must he taken as settled, that, in actions on bonds of the character of the one sued on here, the bar of the Statute commences to run only from the time when the breach of the condition of the bond occurs. This was expressly ruled in the cases of Thruston vs. Blackiston, 36 Md., 501, and Byrd & Crisfield vs. State, use of Stewart, 44 Md., 492. Until the breach of the condition did occur there was no cause of action; and there may have been as many distinct breaches of the condition as there were distinct duties required of the principal in the bond. State vs. Dorsey, 3 G. & J., 75, 94.

By sec, 192 of Art 93 of the Code, it is made the duty of guardians, upon the arrival at age of their wards, or on marriage of female wards, to exhibit a final account to the Orphans’ Court, and to deliver up, agreeably to the order of the Court, to their wards, all the property of every kind and description in their hands; and on failure their bonds may he put in suit. This of course, contemplates time after the arrival at age of the ward; at least there must be allowed a reasonable time thereafter for settling the account in the Orphans’ Court, before there is a breach of duty occasioned by the non-settlement of such account. Griffith vs. Parks, 32 Md., 1, 8.

But the settlement of the account in the Orphans’ Court is one thing and a particular duty, and the payment of the amount ascertained to be due the ward is another thing and a distinct duty ; and the failure or neglect to perform either of these duties could he assigned as a breach of the condition of the bond. State vs. Dorsey, supra. The ward was not hound to sue for the first breach that occurred, assuming that there was a breach committed in failing to settle the account in the Orphans’ Court within a reasonable time after she arrived at age. She may have preferred, and it may have been to her interest, to take proceedings to compel the guardian to settle the account of his guardianship in the Orphans’ Court, before bringing suit upon the bond. It was certainly contemplated by the statute, with reference to which the bond was given, that such final account should be stated; and when that account was stated, and approved by the Orphans’ Court, it at once became the duty of the guardian, by force of the statute, to pay over whatever was in his hands belonging to the ward; and his failure so to do constituted a distinct breach of the condition of the bond.

This principle of pleading is very plainly stated by the learned Judge who delivered the opinion of the Court in the case of the State vs. Dorsey, before referred to ; and if additional authority he needed, it may he found in the case of Sanders vs. Coward, 15 M. & W., 48, 56. In this last case, Baron Pakke, in delivering the judgment of the Court, and speaking of the application of the defence of the Statute of Limitations to breaches of the condition of a bond, said: “Although, on the first breach of the condition of a bond, the obligee may sue the obligor, and have judgment under the Statute of 8 and 9 W. III, ch. 11, as a security of a higher nature for future breaches, he is not hound to pursue that course. He may waive the right of action on the bond, in respect of the first breach, or any number of breaches, and he contented with the specialty security only for future breaches, and sue after-wards on á subsequent forfeiture, and assign that for a breach. If it were not so, the inconvenience would he considerable, and the value of a security by bond diminished.”

It is not the penalty of the bond that forms the real cause of action, hut the breach of the condition, (Sanders vs. Coward, 13 M. & W., 71;) and here the hreaqh assigned is the non-payment of the money ascertained to he due by the settlement of the account in the Orphans’ Court. And as that breach occurred within less than twelve years before action brought, in my judgment, the Statute forms no bar to the recovery of the money due, according to the account stated in the Orphans’ Court.

Miller, J., concurs in this opinion.