Admitting the allegations of the complaint to be true,
as we must do in considering the sufficiency thereof when challenged by demurrer, appellants present this question: “Where a guardian uses guardianship funds to improve and keep up property in which she is individually interested along with the wards, contributing nothing from her own funds, but taking her share of the rents, and violates her obligations as guardian in other respects, can the surety on the guardian’s bond maintain an action in the Superior Court at term time prior to termination of the guardianship to enforce the liability of the guardian in exoneration of the surety, and to surcharge and correct the guardian’s accounts either at common law or under C. S., 135 ?” We are of opinion, and hold, that the surety may maintain such an action and that the provisions of 0. S., 135, are in themselves sufficiently broad to give Superior Court original concurrent jurisdiction of the action.
1. As a general rule the surety on a guardian’s bond is a creditor of his principal from the date of its execution, although no default occurs until long afterward. 25 Am. Jur., 127, Guardian and Ward, section 203. In the case of Ames v. Darrah, 76 Miss., 187, 23 So., 768, 71 Am. St. Rep., 522, the Supreme Court of Mississippi held that a surety can maintain a bill in equity to set aside a voluntary conveyance made by the guardian to his wife after the date of the bond but before occurrence of a default. Also compare Stenhouse v. Davis, 82 N. C., 432. But if the rule were otherwise, the defense that plaintiff is not a real party in interest is new matter, and may only be made by affirmative allegations. Morrow v. Cline, 211 N. C., 254, 190 S. E., 207; Nall v. McConnell, 211 N. C., 258, 190 S. E., 210; Leach v. Page, 211 N. C., 622, 191 S. E., 349.
Moreover, when a guardian fails to “faithfully execute the trust reposed in him as such,” upon which his bond is conditioned, O. S., 2162, the surety thereon is subjected to liability, and as. a party in interest is ■entitled to have the wrong remedied.
2. While the surety might have proceeded before the clerk, the statute, C. S., 135, provides that “in addition to the remedy by special proceed*14ings, actions against executors, administrators, collectors and guardians may be brought originally to the Superior Court at term time; and that it shall be competent for the court in which said actions are pending to order an account to be taken by such persons as said court may designate, and to adjudge the application or distribution, of the fund ascertained, or to grant other relief, as the nature of the case may require.”
Construing this statute, which originated as section 6, chapter 241, Act of 1876-77, there are numerous decisions relating to administration of estates in which it is held that the Superior Court is therein given concurrent jurisdiction with the probate courts, that is, clerks of Superior Court in actions of class mentioned in the statute. See Haywood v. Haywood, 79 N. C., 42; Bratton v. Davidson, 79 N. C., 423; Simpson'v. Jones, 82 N. C., 323; Pegram v. Armstrong, 82 N. C., 326; Stenhouse v. Davis, 82 N. C., 432; Rountree v. Britt, 94 N. C., 104; Godwin v. Watford, 107 N. C., 168, 11 S. E., 1051; Royster v. Wright, 118 N. C., 152, 24 S. E., 746; Fisher v. Trust Co., 138 N. C., 90, 50 S. E., 592; Shober v. Wheeler, 144 N. C., 403, 57 S. E., 152; Oldham v. Rieger, 145 N. C., 254, 58 S. E., 1091; Clarlk v. Homes, 189 N. C., 703, 128 S. E., 20; S. v. McCanless, 193 N. C., 200, 136 S. E., 371; Thigpen v. Trust Co., 203 N. C., 291, 165 S. E., 720; In re Hege, 205 N. C., 625, 172 S. E., 345; Rigsbee v. Brogden, 209 N. C., 510, 184 S. E., 24; Leach v. Page, 211 N. C., 622, 191 S. E., 349; Gurganus v. McLawhorn, 212 N. C., 397, 193 S. E., 844. And this statute as it was originally enacted, and now is, applies to guardians as well as to executors and administrators.
That the statute is not confined to actions pertaining to final settlement in the administration of estates of deceased persons is shown in the case of Haywood v. Haywood, supra, Leach v. Page, supra; Gurganus v. McLawhorn, supra. And no sufficient reason appears for contrary holding in the present case which relates to a guardianship. In this connection defendants point to the case of Moses v. Moses, 204 N. C., 657, 169 S. E., 273. This case is distinguishable from that in hand. While there the question as to the applicableness of O. S., 135, was debated in briefs filed, apparently the Court was of opinion that the primary purpose of the action was the removal of the guardian, and that the matters of accounting were predicated upon such removal, and decided the case without any reference to the provisions of C. S., 135.
The judgment below is
Reversed.