Yarbrough v. Hightower

BOULDIN, J. The bill is filed for subro-gation. The case made by the bill is this: At November election, 1916, E. C. Robi-son was duly elected tax collector of Limestone county. On July 6, 1917, he made and filed in the office of the judge of probate his official bond in due form, which was duly approved and recorded. These complainants were sureties on the bond. On the same date he took the oath of office required by law. He entered upon the duties of the office October 1, 1917, and served the full term ending September 30, 1921. Thereafter it was duly ascertained that the collector was in default, and these complainants, as sureties, were required to pay the shortage. They seek to be subrogated to the lien of the state and county and to enforce the same upon certain real estate owned by said Robison during his term of office. The respondents are vendees and sub-vendees of Robison. The appeal is from a decree overruling demurrers to the bill as amended. The question presented by assignments of error and mainly stressed in argument may be thus stated: The law required the official bond of ' the tax collector to be filed in office of the judge of probate within 15 days after his election in November, 1916. Code 1907, §. 1495. The failure to file the bond within the time fixed by law vacated the office. Code 1907, § 1498. On this premise it is argued that Robison vacated and lost all right to the office, that his subsequent assumption of the duties of the office was wrongful, a mere usurpation; that his bond was not a statutory bond and created no lien on his property, unless by way of estoppel in favor of the state and county; that the sureties were joint wrongdoers in executing a bond in aid of the usurpation of a public office; that their loss resulted from their own wrong, and hence they do not come into equity with clean hands. We need not pass upon the soundness of this position for the following reasons:. Section 2160, Code 1907, codifying Acts 1903, p. 370, made the term of office of the tax collector to begin on the first day of August next after his election. Section 2161, Code 1907, as amended by the Code committee, required his bond to be filed on or before the first day of July next after his election. The General -Revenue Law of 1915 (Acts 1915, p. 386) re-enacted and amended section 2160, Code 1907, so as to make the term of office of the tax collector begin on the first day of October next after his election, and extend the terms of those in office' to October 1, 1917. Gen. Acts 1915, § 143, p.,447.' Section 2161, Code 1907,»was also re-enacted and amended so as to require the bond of the tax collector to be filed on or before the first day of September next after his election. Gen. Acts 1915, § 144, p. 447. These statutes remove the tax collector’s bond from the provisions of section 1495, Code 1907. We hold that tax collector Robison was an officer de jure, and that the sureties on his bond have all the rights of subrogation arising in such cases in equity. Randolph v. Brown, 115 Ala. 677, 22 South. 524; *264 Randolph v. Billing, 115 Ala. 682, 22 South. 468; Cummings v. May, 110 Ala. 479, 20 South. 307; Knighton v. Curry, 62 Ala. 404; Singleton v. U. S. F. & G. Co., 195 Ala. 506, 70 South. 169. The former decree confessing demurrers to the original bill,' granting leave, on complainants’ motion, to amend, and continuing the cause, creates no estoppel, res adjudicata, nor judicial admission as against the amended bill setting, up the same general equity in amended form. The decree of the court below’is affirmed. Affirmed. ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.