The opinion of the Court was delivered by
Mr. Justice Gary.
The record contains the following statement: “The above action was commenced on the nth day of August, 1894. An order of reference was made therein to take the testimony upon the issues raised by the pleadings; upon the report of the referee the cause was first heard at the September (1896) term of the Court of Common Pleas for Fairfield County, before his Honor, Judge R. C. Watts; who, on the 9th day of January, 1897, filed his judgment therein, dismissing the complaint. Upon appeal by the plaintiff, the judgment of Judge Watts was reversed by the Supreme Court and the cause remanded — 51 S. C., 191. Thereupon the defendant, Henry L. Parr, applied before his Honor, Judge Klugh, at thé February (1898) term of the Court, and obtained an order granting leave to amend his answer by setting up additional defenses. On appeal taken by the plaintiff, this order by Judge Klugh was affirmed by the Supreme Court. — -54 S. C., 109. The summons and complaint were amended as required by Judge Klugh’s order by making the administrator of William B. Elkin, deceased, and the administrator of Mary Ann Elkin, deceased, and Carrie G. Elkin, parties. The defendant, Henry L. Parr, served his amended answer as provided in said order of Judge Klugh, and after the taking of some additional testimony the cause came on for hearing before his Plonor, Judge Gage, at the June term (1901) of the
Court. He filed his decree on the 3d day of August, 1901, from which the defendant Parr now appeals to this Court.” The decree of his Honor, the Circuit Judge (omitting the part hereinafter quoted), and the appellant’s exceptions, will be set out in the report of the case.
It will nqt be necessary to consider the exceptions in detail, as this Court is satisfied with the conclusions reached by the Circuit Judge for the reasons assigned by him on all questions in issue, except those growing out of the suretyship of Mary Ann Elkin on the bond of W. B. Elkin, as guardian of the defendant, Henry E. Parr, which the Court will proceed to determine.
That portion of the decree disposing of these questions is as follows: “The twelfth defense charges that Mary Ann Elkin was surety on the bond of W. B. Elkin, guardian of Henry L. Parr, an infant; and the defendant, Henry E. Parr, pleads as an equitable defense against those who here represent Mary Ann Elkin, whatever the estate of W. B. Elkin is due to him by reason of guardianship, and arising thereout. Thereupon, the defendant, Carrie G. Elkin, answered the complaint, and replied to the amended answer of Parr, and the defendant, R. H. Jennings, as administrator of the estate of Mary Ann Elkin, replied to the amended answer of Parr. Among other defenses, the replies above referred to plead the statute of limitation to the said equitable defenses plead by Parr. The estate of Mary Ann Elkin replied, also, that Mary Ann Elkin died in 1884, and W. B. Elkin died in 1890, without lineal descendant; that by the will of James Elkin, his son, W. B., took a fee defeasible in the Elkin tract, with an executory devise to Mary Ann, the sister of W. B., in one-half the land, with contingent remainder to her children living at the time of her death; that the bond sued on was substituted for the Elkin tract by decree of the court of equity; that the estate of Mary Ann has no such interest in the bond as is chargeable with her liability as surety on the bond made by W. B. Elkin, as guardian for H. R. Parr. The estate of W. B. Elkin replied, also, that pursuant to the will of James
Elkin, the estate of James Elkin has no interest in the bond sued on, and for the reason above stated. Some additional testimony was taken by the referee after the said amendments, and it relates chiefly to the rents in the Eakin tract of land. I heard the cause on the testimony taken before the amendments, and that taken thereafter. The testimony appearing in the printed case of Ruff
v.
Elkin, and that entire record was withdrawn by counsel from consideration in this case. * * * The person named in the will of James Elkin as Mary Ann Elkin, and who was to take, under contingencies named, along with her sister, Judith W. Ruff, died in June, 1884. Her heirs at law are parties to this action. One of them, Carrie G. Elkin, widow of Mary Ann’s son, David, and to whom reference will hereafter be made. In April, 1887, W. B. Elkin became the guardian of the person and estate of the defendant, Henry E. Parr, then about seven years old. The guardian’s bond for $1,200, was signed by Mary Ann Elkin as a surety. The twelfth defense of Henry E- Parr, before cited, puts in issue the transaction of Elkin as guardian. It has been decided by the Circuit and Supreme Court that the defense is allowed — 54 S. C., 109. So that the only inquiry is, has it been established by the testimony and the law ? Against the consideration of this plea, the heirs at law of Mary Ann Elkin plead, as hereinbefore stated, that they are entitled to the bond under the will of James Elkin, as purchasers, and not as inheritors from Mary Ann. While the Supreme Court did not decide this question upon an issue made there, the Chief Justice indicated a decided opinion to the contrary, and I shall assume such to be the law. And further, as a bar to this plea, the plaintiff pleads the statute of limitation. The record from the probate court shows that the guardian made his last return May 9th, 1889. Pie died in April, 1890. By the last but not final return he was debtor to his ward in the sum of $3.38. The ward did not arrive at maturity until February 7th, 1891. There is no evidence that the guardian was ever discharged. The last return does not purport to be a full and
final statement of all that was coming to the ward. The balance struck does not purport to be for payment to his ward. The statute did not begin to run because of said return. Nevertheless, if the statute has run, the defendant, Parr, can sustain his plea as an equitable set-off, in analogy to the case of
Wilson
v.
Kelly,
16 S. C., 216. It would be unconscionable to allow the Elkins to exact payment of Parr at a time when they owed Parr, without requiring them to pay, too. In no other way could Parr get payment. If he could get payment in another forum, he would be remitted there. So this is the next inquiry: is the estate of Mary Ann Elkin liable for anything on the guardianship bond ? The account of the guardian in the probate court shows a liability of only $3.38. The account has not been falsified, and is presumably correct. But the defendant, Parr, demands of the surety, Mary Ann Elkin, the rents of the Montgomery tract, collected and appropriated by W. B. Elkin betwixt 1887 and 1890, and found by the Circuit Judge who first heard the case (and affirmed by the Supreme Court) to exceed the principal and interest of the bond — 51 S. C., 213. The guardian is liable for all funds of his.ward which he may receive, no matter from what source. And the surety guarantees the faithful performance of the trust. But the Chief Justice has well said, ‘There is nothing whatever in the case, upon which even a pretense could be founded, that (Elkin) took possession of the lands as guardian; on the contrary, all the proceedings conclusively show that his possession was adverse to the rights of Henry L. Parr — 51 S. C., 215. If that be so, Elkin was liable to Parr for rents as trespasser, and for such liability the surety on his bond as guardian is not liable.”
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The opinion of the Court was delivered by
Mr. Justice Gary.
The record contains the following statement: “The above action was commenced on the nth day of August, 1894. An order of reference was made therein to take the testimony upon the issues raised by the pleadings; upon the report of the referee the cause was first heard at the September (1896) term of the Court of Common Pleas for Fairfield County, before his Honor, Judge R. C. Watts; who, on the 9th day of January, 1897, filed his judgment therein, dismissing the complaint. Upon appeal by the plaintiff, the judgment of Judge Watts was reversed by the Supreme Court and the cause remanded — 51 S. C., 191. Thereupon the defendant, Henry L. Parr, applied before his Honor, Judge Klugh, at thé February (1898) term of the Court, and obtained an order granting leave to amend his answer by setting up additional defenses. On appeal taken by the plaintiff, this order by Judge Klugh was affirmed by the Supreme Court. — -54 S. C., 109. The summons and complaint were amended as required by Judge Klugh’s order by making the administrator of William B. Elkin, deceased, and the administrator of Mary Ann Elkin, deceased, and Carrie G. Elkin, parties. The defendant, Henry L. Parr, served his amended answer as provided in said order of Judge Klugh, and after the taking of some additional testimony the cause came on for hearing before his Plonor, Judge Gage, at the June term (1901) of the
Court. He filed his decree on the 3d day of August, 1901, from which the defendant Parr now appeals to this Court.” The decree of his Honor, the Circuit Judge (omitting the part hereinafter quoted), and the appellant’s exceptions, will be set out in the report of the case.
It will nqt be necessary to consider the exceptions in detail, as this Court is satisfied with the conclusions reached by the Circuit Judge for the reasons assigned by him on all questions in issue, except those growing out of the suretyship of Mary Ann Elkin on the bond of W. B. Elkin, as guardian of the defendant, Henry E. Parr, which the Court will proceed to determine.
That portion of the decree disposing of these questions is as follows: “The twelfth defense charges that Mary Ann Elkin was surety on the bond of W. B. Elkin, guardian of Henry L. Parr, an infant; and the defendant, Henry E. Parr, pleads as an equitable defense against those who here represent Mary Ann Elkin, whatever the estate of W. B. Elkin is due to him by reason of guardianship, and arising thereout. Thereupon, the defendant, Carrie G. Elkin, answered the complaint, and replied to the amended answer of Parr, and the defendant, R. H. Jennings, as administrator of the estate of Mary Ann Elkin, replied to the amended answer of Parr. Among other defenses, the replies above referred to plead the statute of limitation to the said equitable defenses plead by Parr. The estate of Mary Ann Elkin replied, also, that Mary Ann Elkin died in 1884, and W. B. Elkin died in 1890, without lineal descendant; that by the will of James Elkin, his son, W. B., took a fee defeasible in the Elkin tract, with an executory devise to Mary Ann, the sister of W. B., in one-half the land, with contingent remainder to her children living at the time of her death; that the bond sued on was substituted for the Elkin tract by decree of the court of equity; that the estate of Mary Ann has no such interest in the bond as is chargeable with her liability as surety on the bond made by W. B. Elkin, as guardian for H. R. Parr. The estate of W. B. Elkin replied, also, that pursuant to the will of James
Elkin, the estate of James Elkin has no interest in the bond sued on, and for the reason above stated. Some additional testimony was taken by the referee after the said amendments, and it relates chiefly to the rents in the Eakin tract of land. I heard the cause on the testimony taken before the amendments, and that taken thereafter. The testimony appearing in the printed case of Ruff
v.
Elkin, and that entire record was withdrawn by counsel from consideration in this case. * * * The person named in the will of James Elkin as Mary Ann Elkin, and who was to take, under contingencies named, along with her sister, Judith W. Ruff, died in June, 1884. Her heirs at law are parties to this action. One of them, Carrie G. Elkin, widow of Mary Ann’s son, David, and to whom reference will hereafter be made. In April, 1887, W. B. Elkin became the guardian of the person and estate of the defendant, Henry E. Parr, then about seven years old. The guardian’s bond for $1,200, was signed by Mary Ann Elkin as a surety. The twelfth defense of Henry E- Parr, before cited, puts in issue the transaction of Elkin as guardian. It has been decided by the Circuit and Supreme Court that the defense is allowed — 54 S. C., 109. So that the only inquiry is, has it been established by the testimony and the law ? Against the consideration of this plea, the heirs at law of Mary Ann Elkin plead, as hereinbefore stated, that they are entitled to the bond under the will of James Elkin, as purchasers, and not as inheritors from Mary Ann. While the Supreme Court did not decide this question upon an issue made there, the Chief Justice indicated a decided opinion to the contrary, and I shall assume such to be the law. And further, as a bar to this plea, the plaintiff pleads the statute of limitation. The record from the probate court shows that the guardian made his last return May 9th, 1889. Pie died in April, 1890. By the last but not final return he was debtor to his ward in the sum of $3.38. The ward did not arrive at maturity until February 7th, 1891. There is no evidence that the guardian was ever discharged. The last return does not purport to be a full and
final statement of all that was coming to the ward. The balance struck does not purport to be for payment to his ward. The statute did not begin to run because of said return. Nevertheless, if the statute has run, the defendant, Parr, can sustain his plea as an equitable set-off, in analogy to the case of
Wilson
v.
Kelly,
16 S. C., 216. It would be unconscionable to allow the Elkins to exact payment of Parr at a time when they owed Parr, without requiring them to pay, too. In no other way could Parr get payment. If he could get payment in another forum, he would be remitted there. So this is the next inquiry: is the estate of Mary Ann Elkin liable for anything on the guardianship bond ? The account of the guardian in the probate court shows a liability of only $3.38. The account has not been falsified, and is presumably correct. But the defendant, Parr, demands of the surety, Mary Ann Elkin, the rents of the Montgomery tract, collected and appropriated by W. B. Elkin betwixt 1887 and 1890, and found by the Circuit Judge who first heard the case (and affirmed by the Supreme Court) to exceed the principal and interest of the bond — 51 S. C., 213. The guardian is liable for all funds of his.ward which he may receive, no matter from what source. And the surety guarantees the faithful performance of the trust. But the Chief Justice has well said, ‘There is nothing whatever in the case, upon which even a pretense could be founded, that (Elkin) took possession of the lands as guardian; on the contrary, all the proceedings conclusively show that his possession was adverse to the rights of Henry L. Parr — 51 S. C., 215. If that be so, Elkin was liable to Parr for rents as trespasser, and for such liability the surety on his bond as guardian is not liable.”
6
The error of the Circuit Judge was in ruling that the surety on the guardianship bond of W. B. Elkin was not liable unless he received the rents of the lands as guardian of Henry L. Parr. A guardian and his sureties are not only liable for whatever property of the ward may have come into his hands as guardian, but likewise for all
„ property of the ward which could have been reduced to possession, by the exercise of due diligence on the part of the guardian in the administration of his trust. This is not a case where it can be contended that the guardian could not get the property of the ward into his possession, for he actually received the rents from lands belonging to the ward. The guardian and his sureties were, therefore, liable upon their bond for the rents, whether received by him as guardian or in his individual capacity. As this Court is satisfied that Mary Ann Elkin became liable to the full extent of the bond, it will not be necessary to order an accounting to determine the extent of her liability. This amount must be deducted from the beneficial interest of her representatives in the bond sued on.
It is the judgment of the Court, that the judgment of the Circuit Court as herein modified be affirmed.