Richmond County NcArchives Court.....Albert Lomax, Guardian, William L. Barham & Wife V. 1875
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Connie Ardrey n/a November 1, 2011, 7:53 pm

Source: N C Reports
Written: 1875

William L. Barham & wife v. Albert Lomax, Guardian

In an action against a guardian to falsify an account of settlement, on the 
ground of fraud recently discovered, inasmuch as the relief sought might have 
been substantially obtained in a Court of law, the action became barred by the 
statute of limitations, after the lapse of three years.

Civil Action, tried before Kerr, J., at Fall Term, 1874, Rockingham Superior 
Court

The following are the substantial facts necessary to an understanding of the 
case as decided in this Court:

The defendant, Albert Lomax, was appointed guardian of the feme plaintiff (who 
was at that time a minor and unmarried) on the 27th day of May, 1851. On the 
same day he executed his bond and assumed the duties of guardian.

His ward, the feme plaintiff, married William L. Barham, the other plaintiff, 
in 1865, and was at the commencement of this action, of full age.

The defendant as guardian received the estate of said ward, amounting to the 
some of one thousand dollars or thereabout. At February Term, 1866, of the 
county court of Rockingham he reported the sum of $1,292.03 due his said ward. 
At February Term, 1867, of the said Court, commissioners were appointed to 
settle with the defendant, as guardian of the feme plaintiff. The 
commissioners reported a balance in the hands of her said guardian, of one 
thousand one hundred and thirty-seven dollars and fifty-eight cents.

The plaintiff, William L. Barham, received from the defendant on the 24th day 
of May, 1867, certain bonds in payment of the indebtedness of the defendant, 
to the feme plaintiff his wife, and gave defendant a receipt in full, and a 
release of all indebtedness as guardian of his ward.

This action was brought to cancel this receipt and release and recover the 
amount of the bonds, on the ground that the defendant had fraudulently 
procured the execution of the bonds aforesaid at a time subsequent to the 
dates they bore, and that the obligors were insolvent at the time of their 
execution.

As one of several defences, the defendant relied on the statute of 
limitations. Preliminary to a trial by jury, of the other issues raised by the 
pleadings, on motion by the defendant, the cause was heard upon the complaint, 
and the statute of limitations set up in the answer.

Upon the hearing, the Court gave judgment for the defendant. From this 
judgment the plaintiffs appealed.

Tourgee & Gregory, for appellants
Dillard & Gilmer, contra

NC Supreme Court Justice Rodman, J. - The only question at present presented 
is whether the statute of limitations as applied by Courts of Equity bars the 
plaintiff's action.

We concur with the Judge that the plaintiff's claim is barred by the Statute. 
(see court case for judge's full findings)

Additional Comments:
In the NC Supreme Court June Term 1875

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