Wilkes County NcArchives Court.....John W. Martin, O. & Nancy Sprinkle V. 1873
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File contributed for use in USGenWeb Archives by:
Connie Ardrey n/a January 15, 2010, 6:28 pm

Source: Nc Reports
Written: 1873

State on the relation of O. Sprinkle and wife Nancy v. John W. Martin
June Term, 1873

An instrument intended as a guardian bond, in which the names of the wards are 
recited in the wrong place, and in another part of said bond the names are 
inserted, A, B and others, wards, by a just and liberal construction is 
sufficient as a guardian bond under the statute.

Civil Action, tried before Mitchell, J., at Spring Term, 1873, of Wilkes 
Superior Court.

Plaintiff declared on the following bond, claiming the same as a guardian bond:

"State of North Carolina,
"Wilkes County.
"Know all men by these presents, that Benjamin P. Martin, John Martin and N. 
G. Martin, all of Wilkes County, in the State aforesaid, are held and firmly 
bound unto the State of North Carolina in the sum of twenty thousand dollars, 
current money, to be paid to the said State in trust for the benefit of the 
child - hereafter named, committed to the tuition of the said S. J. Martin, J. 
O. Martin, N. E. Martin, E. S. Martin and Felix Martin, to which payment well 
and truly to be made, we bind ourselves and each of us, each and every one of 
our heirs, executors and administrators, jointly and severally firmly by these 
presents. Sealed with out seals, and dated the day of 4th November, in the 
year of our Lord, 1857.

"The condition of the above obligation is such, that whereas, the above 
bounden Benjamin P. Martin is constituted and appointed guardian to S. J. 
Martin, J. O. Martin and others, a minor orphan; now if the said Benjamin P. 
Martin shall faithfully execute his said guardianship, by securing and 
improving all the estate of the said S. J. Martin and others, that shall come 
into his possession for the benefit of the said S. J. Martin and others, until 
he shall arrive at full age, or be sooner thereto required, and then render a 
true and plain account of his said guardianship on oath before the Justices of 
our said Court, and deliver up, pay to, or possess the said S. J. Martin and 
others of all such estate or estates as he ought to be possessed of, or to 
such other persons as shall be lawfully empowered or authorized to receive the 
same, and the profits arising therefrom, then the obligation to be void, 
otherwise to remain in full force and virtue.

"Benjamin P. Martin (Seal)
"Nathan G. Martin (Seal)
"J. W. Martin (Seal)
"Test: W. Martin
"A true copy. Test: George H. Brown, Clerk"

Plaintiffs showed from the records of the late Court of Pleas and Quarter 
Sessions of Wilkes County, that "B. P. Martin was appointed guardian of S. J. 
Martin, J. O. Martin, N. E. Martin, E. S. Martin and Felix Martin, and give 
bond in the sum of $20,000, with N. Y. Martin and J. W. Martin, securities," 
and that the bond, of which the foregoing is a copy, was found among the 
propers files in the office of the present clerk.

Defendant introduced no evidence, and insisted that the plaintiff could not 
recover in this action, for defects apprent upon the face of the bond, and 
asked the Court so to instruct the jury.

His Honor gave the instructions prayed, and the jury returned a verdict in 
favor of defendants. Motion for a new trial; motion refused. Judgment against 
plaintiffs for costs and appeal.

Furches for appellant

1. There is no doubt as to the fact that B. P. Martin was appointed guardian 
of the feme plaintiff, upon his giving the bond required by the Court.

2. It is equally certain that the said B. P. Martin, with Green Martin and the 
defendant, his sureties, undertook to comply with the order of the Court and 
the requirements of the law by executing and filing the bond upon which suit 
is brought.

3. The bond is certain to a certain intent. The name of the feme plaintiff 
appears in the bond, and although it does not appear in the conditions, yet it 
is certainly referred to by the word "others" and therefore is sufficient.

4. In constructing a deed, such a construction must be put upon its effect, 
rather than to destroy.

5. Bond was sufficiently executed for an official bond, by delivering it to 
Mastin, Clerk.

6. But if a guardian bond has been improperly prepared on account of the 
ignorance or inadvertence of the clerk, equity will perfect the same against 
the surety as well as against the principal.

7. Under the present organization of the Courts they have jurisdiction of 
questions of equity, as well as of law, in cases brought since the adoption of 
the C.C.P. And the complaint in this case is framed with a view to both 
reliefs.

Armfield and Folk, for defendant

[NC Supreme Court]
Reade, J.
There is error
Per Curiam

[See court case for Judge Reade's complete findings]

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