#### STATE OF NORTH CAROLINA on the Relation of JOSEPH B. CHESHIRE, JR., Guardian of FRANK BRIGGS HOWARD, a Minor, v. IRMA R. HOWARD, M. G. JONES, and A. M. MOORE.

(Filed 28 January, 1935.)

1. Guardian and Ward B e — Sureties on guardianship bond held estopped by recital in bond from attacking validity of guardian’s appointment'.

Persons signing a guardianship bond as sureties, which bond recites that the guardian therein bonded had been duly appointed by the clerk, are estopped by the recital in the bond from attacking the validity of the appointment of the guardian for that the guardian had not signed the application for appointment or the required oath, the guardian having been appointed by the clerk and having received the estate pursuant thereto and filed the bond signed by the sureties, and the guardian not denying the validity of her appointment or her liability as guardian.

2. Guardian and Ward H a — Persons signing guardianship bond as sureties are not relieved of liability, thereon by guardian’s failure to sign.

Although the acceptance by the clerk of a guardianship bond without the signature of the guardian as principal thereon, O. S., 2162, 2163, is an irregularity, the sureties signing the bond are not thereby relieved of liability, the guardian being liable because filing the bond with the court, and the sureties being liable because signing same, and the failure of the guardian to sign same being a mere technical defect resulting in no injury to the sureties since upon payment by them upon default of the guardian a cause of action accrues in their favor against the guardian.

S. Same — Allegation that liability of sureties on guardianship hond was conditioned upon signature of guardian held insufficient to state defense.

Defendants signed the guardianship bond in question on the same day the guardian therein named was appointed. In an action against them on the bond they alleged that they signed the bond upon assurance that the guardian therein named would sign the bond, and that the bond would not be effective as to them unless signed by the guardian, and that the guardian did not sign the bond until the institution of the action: *Held,*it was not error for the court to refuse to admit evidence in support of such allegations since it was not alleged by whom such assurances had been given, and it being doubtful whether the clerk could have accepted the bond conditionally.

*567Appeal by defendants M. G. Jones and A. M. Moore, from *Grady, J.,*at June Term, 1934, of WaKE.

Affirmed.

This is an action to recover damages for the breach of a guardian’s bond. The action was begun on 31 August, 1933.

Judgment by default and inquiry was rendered by the clerk of the Superior Court of Wake County, on 30 October, 1933, in favor of the plaintiff and against the defendant Irma R. Howard, as principal, because of her failure to demur or file answer to the complaint. She did not except to or appeal from the judgment.

When the action was called for the trial of the issues raised by the answers of the defendants M. G. Jones and A. M. Moore, a trial by jury was duly waived, and it was agreed by the parties to the action that the judge might hear the evidence, find the facts, and render judgment accordingly.

Pursuant to said agreement, the judge heard the evidence, found the facts, and rendered judgment as follows:

“This cause coming on to be heard at June Term, 1934, of the Superior Court of Wake County before his Honor, Henry A. Grady, judge presiding, and the parties hereto having agreed in open court that his Honor might hear the evidence and find the facts without the intervention of a jury, and render judgment either in or out of term, and either in or out of the district, and his Honor having heard the evidence of the plaintiff, and having permitted the defendants M. G. Jones and A. M. Moore to examine their codefendant, Irma R. Howard, before the clerk, and a transcript of the evidence taken at the examination of Irma R. Howard being before the court, his Honor finds the following facts :

1. Irma R. Howard qualified as the guardian of Frank Briggs Howard before the clerk of the Superior Court of Wake County, North Carolina, on 11 February, 1925, by giving bond in the penal sum of $4,666.67, with the defendants M. G. Jones and A. M. Moore, as sureties. The defendant Irma R. Howard did not sign the bond at the time of her qualification, but has signed the same since the institution of this action. The defendants M. G. J ones and A. M. Moore each signed the said bond and justified before the clerk of the Superior Court of Wake County. A true copy of the bond is attached to the complaint of the plaintiff in this action.

2. Irma R. Howard, as guardian of Frank Briggs Howard, received the sum of $2,333.33, a part of which, to wit: $121.53, she expended for the benefit of Frank Briggs Howard without court authority, and the balance of which, to wit, $2,211.81, she loaned to her brother-in-law, M. B. Origler, of Cheraw, South Carolina, upon his promissory note, without endorsement, and without taking any security therefor. M. B. *568Crigler is now insolvent. Irma R. Howard received interest upon the note of M. R Crigler from the date of its execution to 1 September, 1933, which she expended for the care and maintenance of her ward, and that such expenditure, though without court authority, was reasonable and necessary for her ward’s welfare.

3. Irma R. Howard was removed as guardian *of Frank Briggs Howard, for sufficient cause and after the notice prescribed by law, on 27 July, 1933, and Joseph B. Cheshire, Jr., was thereupon appointed and qualified as the guardian of Frank Briggs Howard.

4. The defendant Irma R. Howard had been grossly negligent in the management of the estate of her ward, Frank Briggs Howard.

5. The answers of the defendants M. Gr. Jones and A. M. Moore do not constitute a valid defense to the action.

6. Irma R. Howard has property which should be applied *pro tanio*to the satisfaction of this judgment.

It is now therefore considered, ordered, and adjudged by the court that the plaintiff Joseph B. Cheshire, Jr., guardian of Frank Briggs Howard, have judgment against and recover from Irma R. Howard, as principal, and M. G-. Jones and A. M. Moore, as sureties, jointly and severally, the sum of $4,666.67, the penalty of their bond, the same to be discharged upon the payment of the sum of $2,333.33, with interest thereon from 1 September, 1933, compounded annually, until paid, together with the costs of this action.

It is further considered, ordered, and adjudged by the court that as between the defendants herein, without affecting the right of the plaintiff to recover of all the defendants herein in accordance with the judgment hereinbefore pronounced, Robert N. Simms, Jr., be appointed receiver in this action to take into his possession all the property, both real and personal, tangible and intangible, of the defendant, Irma R. Howard, and sell and collect upon the same, or so much thereof as may be necessary for the satisfaction of this judgment, including the costs and expenses of this action, and the reasonable costs and expenses of the receiver as the same may be allowed by the court. The receiver shall have all the power conferred upon receivers by statute in such cases. The bond of the receiver is fixed at $250.00, to be approved by the clerk of the court.

Execution shall not issue herein for a period of six months from this date if the defendants M. G-. Jones and A. M. Moore shall, within ten days, execute and deliver to the clerk of this court sufficient bond, to be approved by him, in the penal sum of $4,666.67, conditioned upon the payment of this judgment in full, principal, interest, and costs. The court reserves the right to further suspend execution against the defendants upon a proper showing.”

*569Tbe defendants M. G. Jones and A. M. Moore excepted to tbe foregoing judgment, and appealed to tbe Supreme Court, assigning errors based upon tbeir exceptions to tbe admission of evidence, to tbe findings of fact, and to tbe judgment.

*Paul F. Smith for plaintiff.*

*Weisner Farmer for defendant M. G. J ones.*

*Simms & Simms for defendant A. M. Moore.*

CoNNOR, J.

On tbeir appeal to tbis Court, tbe defendants M. G. Jones and A. M. Moore contend:

1. Tbat there was error in tbe finding by Judge Grady tbat tbe defendant Irma E. Howard qualified as guardian of Frank Briggs Howard before tbe clerk of tbe Superior Court of Wake County on 11 February, 1925, for tbat it appears from tbe record in tbe proceeding entitled, “In tbe matter of Frank Briggs Howard, a minor,” tbat tbe said defendant did not, before tbe commencement of tbis action, sign either tbe application for her appointment as such guardian or tbe oath appearing in said record;

2. Tbat there was error in tbe bolding by Judge Grady tbat tbe defendants M. G. Jones and A. M. Moore, who signed tbe bond sued on in tbis action as sureties, are liable on said bond, notwithstanding tbe failure of tbe defendant Irma E. Howard, who is named in said bond as principal, to sign tbe same;

3. Tbat there was error in tbe bolding by Judge Grady tbat tbe facts alleged in tbe answers filed by tbe defendants M. G. Jones and A. M. Moore are not sufficient to constitute a defense to tbis action, and tbat for tbat reason evidence tending to support tbe said allegations was irrelevant.

Tbe allegations in tbe answers are to tbe effect tbat each of said defendants signed tbe bond sued on in tbis action as surety on tbe assurance tbat tbe defendant Irma E. Howard would sign tbe same as principal, and tbat said bond would not be effective as to said defendants, or either of them, unless and until tbe said Irma E. Howard bad signed tbe same as principal.

Each of these contentions is presented to tbis Court by assignments of error duly made by appellants on tbis appeal. Neither of them can be sustained.

1. Tbe first contention cannot be sustained because all tbe evidence on tbe bearing before Judge Grady shows tbat tbe defendant Irma E. Howard was appointed by tbe clerk of tbe Superior Court of Wake County, upon her application, as guardian of Frank Briggs Howard, her infant son, on 11 February, 1925, and tbat after such appointment *570and pursuant thereto, she received the sum of $2,333.33 as guardian of the said Frank Briggs Howard, and undertook to perform her duties as such guardian. Prior to her appointment, she had filed the bond sued on in this action. This bond is signed by the defendants M. Gf. Jones and A. M. Moore, as sureties, and is duly recorded in the office of the clerk of the Superior Court of Wake County. She does not deny the validity of her appointment, or her liability as guardian of her ward. She has not appealed either from the judgment against her by default and inquiry or from the judgment that plaintiff recover of her as principal in the bond the sum of $2,333.33, with interest and costs. Neither of the appealing defendants can challenge in this action the validity of the appointment or qualification of the defendant Irma R. Howard as guardian of Frank Briggs Howard, or deny her liability for her breach of the bond sued on in this action.

The failure of the clerk of the Superior Court of Wake County to require the defendant Irma R. Howard to sign the application for her appointment as guardian, or to sign the oath appearing in the record, is an irregularity, for which no excuse or explanation appears in the record; such irregularity, however, does not render the appointment void as against the defendant Irma R. Howard, or as against the defendants M. G-. Jones and A. M. Moore. The bond contains a recital to the effect that the defendant Irma R. Howard had been appointed by the clerk of the Superior Court of Wake County as guardian of Frank Briggs Howard, a minor. This recital is conclusive on the defendants M. G. Jones and A. M. Moore. They are estopped by the recital in the bond which they signed as sureties from denying in this action the validity of the appointment or qualification of their principal as guardian of her ward. *State ex rel. Barnes v. Lewis, 73*N. C., 138. In that case it was held that the defendant was estopped by the recital in the bond which he had signed as surety to deny that the principal in the bond had been rightfully appointed as guardian.

2. The second contention cannot be sustained because there is no statute in this State which requires a guardian of an infant, who has been appointed by a court of competent jurisdiction to sign the bond which such guardian is required by statute to file with the court before he is permitted to receive property belonging to the estate of his ward. It is provided by statute that “every guardian of. an estate, before letters of appointment are issued to him, must give bond payable to the State, with two or more sufficient sureties, to be acknowledged before and approved by the clerk of the Superior - Court, and to be jointly and severally bound.” C. S., 2162. Such bond must be recorded in the office of the clerk of the Superior Court by which the guardian was appointed. C. S., 2163.

*571Tbe bond in tbe instant case was signed by tbe defendants M. G. Jones and A. M. Moore, and acknowledged by tbem before tbe clerk of tbe Superior Court of Wake County. It was duly recorded in tbe office of said clerk. Tbe bond was executed by tbe sureties and recorded by tbe clerk in strict compliance witb tbe statute.

Undoubtedly, tbe statute contemplates that tbe bond shall be signed and acknowledged by tbe guardian as principal, as well as by tbe sureties. Tbe acceptance and approval of tbe bond by tbe clerk of tbe Superior Court without tbe signature of tbe guardian as principal is an irregularity, but such irregularity does not render tbe bond void either as to tbe principal or as to bis sureties. Both tbe guardian and tbe sureties are bound — the guardian because be has filed tbe bond witb tbe court, tbe sureties because they have signed tbe bond. See *Comrs. v. Inman,*203 N. C., 542, 166 S. E., 519; *S. v. Bradsher,*189 N. C., 401, 127 S. E., 349.

Tbe law applicable to this contention, as settled by judicial decisions, is stated in Stearns on tbe Law of Suretyship (4th Ed.), paragraph 149, as follows:

“Tbe omission of tbe name of tbe principal as one of tbe signers of an official bond, even where bis name appears in tbe body of tbe instrument as an obligor, is a mere technical defect and will not release tbe surety, except in those cases where tbe surety signs upon condition, known to tbe obligee, that tbe bond is not to take effect until signed by tbe principal. Tbe sureties are not injured by tbe failure of tbe principal to sign; if they are compelled to pay tbe penalty of tbe bond because of tbe default of tbe principal, they can recover tbe amount back from tbe principal whether be signed tbe bond or not. When tbe bond is accepted and approved without tbe signature of tbe principal, and tbe latter enters upon bis office by reason of tbe reliance of tbe obligee upon tbe bond, it would be giving tbe sureties tbe benefit of tbe contract without imposing its burdens to permit tbem to escape liability.” This statement of tbe law is fully supported by tbe decisions cited in tbe notes.

3. Tbe third contention cannot be sustained because it is not alleged in tbe answers by whom tbe assurance on which tbe defendants relied was given. It is not alleged that -the clerk of tbe court gave tbe assurance, or that be was informed that tbe sureties bad signed tbe bond conditionally. Even if it bad been so alleged, it is doubtful whether tbe clerk of tbe court, who was required to approve and who did approve tbe bond, bad tbe power to accept tbe bond conditionally. See *S. v. Bradsher, supra.*It is significant that in this case tbe appointment of tbe guardian was made on tbe same day that tbe bond was signed by tbe appealing defendants.

*572It is said in tbe brief filed in this Court for tbe appellants that tbis is a bard case. So it is. It is bard for tbe defendants to be called upon to answer for tbe default of tbe guardian, wbo is tbe mother of ber ward. It would be equally as bard, however, if tbe ward should lose tbe money which was paid to bis guardian to compensate him, in some measure, for tbe death of bis father. Tbe defendants voluntarily assumed liability for such loss as should result from tbe default of tbe guardian and cannot justly complain that tbe law now requires them to discharge their liability. There was no evidence tending to show that tbe sureties in tbis case were prejudiced by tbe irregularities appearing in tbe record. For that reason, tbe irregularities are immaterial.

"We find no error in tbe judgment. It is

Affirmed.