Thomas v. . Connelly

Merrimon, C. J. — after stating the facts: The question presented by the assignment of error in this case is, Are the defendants, sureties to the official bond of the defendant, late Clerk of the Superior Court, liable for the default of the latter in respect to the money received by him as such Clerk from the plaintiff? The answer to the question depends upon the proper interpretation of the purpose and condition of the Clerk’s official bond, and, also, to what extent, if at all, such Clerk may become chargeable officially with moneys received by him by color of his office. The statute, (The Code, § 72) prescribes that the Clerk of the Superior Court shall give a bond with sufficient sureties, “ in ¿ penalty of ten thousand dollars, payable to the State *346 of North Carolina, and with a condition to be void if he shall account for, and pay over, according to law, all moneys and effects which have come, or may come, into his hands, by virtue or color of his office, or under an order or decree of a Judge, even though such order or decree be void for want of jurisdiction or other irregularities, and shall diligently preserve and take care of all books, records, papers and property which have come, or may come, into his possession, by virtue or color of his office, and shall in all things faithfully perform the duties of his office as they are, or thenceforth shall be, prescribed by law.” The purpose of this provision is very broad and comprehensive. It requires every Clerk of the Superior Courts to give bond with sufficient sureties to secure the faithful discharge of his official duties, and especially, among other things, to secure the accounting for and paying over according to law of all moneys .and effects that may be or come into his hands “ by virtue or color of his office.” The condition of the bond required, and the liability of the sureties thereto, are co-extensive with the duties and obligations of the Clerk, as such, however these may arise. Such Clerk is an important and responsible public officer, his duties are varied and serious, affecting the public and individuals. In a variety of ways moneys, rights, credits, securities and other things of value belonging to others go into his hands, and the law charges him with the same for such persons or for their benefit. The statute is careful to make the bond extend to and embrace within its scope and purpose, not only such “moneys and effects” as may come into his hands by “virtue ” of his office, but as well, and as certainly, to such as may so come by “ color ” thereof, and, likewise, to such additional “ duties of his office” .as may be prescribed by law after the execution of the.bond. There seems to be a studied purpose to make the bond embrace and to create liability of the sureties thereto on account of *347 allmoneys and effects ” that come into the hands of the Clerk as such, whether they so come strictly according to law or not. Such comprehensive liability of the sureties did not exist until the enactment of the Code of Civil Procedure; (C. C. P„ § 137). It has been extended once or twice since then in some respects. Thus it appears that the enlargement of such liability was not made through inadvertence or misapprehension, but of purpose. There can be no doubt as to this, and the purpose must be allowed to have just effect. Contrary to our first impression on the subject, the Clerk did not receive the money in question by virtue of his office. He had no legal authority to receive it. In contemplation of law — statutory provisions — it could not properly pass into the hands of the Clerk; certainly it could not, in the absence of some judicial order directing that it should. It was part of the proceeds of land sold at the instance of the plaintiff administrator to make assets to pay debts, &c., of his intestate: The judgment confirming the sale of such land directed the present plaintiff relator to use. so much of the proceeds of the sale thereof as might be necessary to pay the debts and charges of administration, &c.; that any surplus of the fund so arising should be deemed real estate, and that the plaintiff should dispose of the same, according to law, to such persons as would have been entitled to the land itself but for the sale. The judgment of confirmation of sale, &c., was á proper one? and it had the effect to vest the proceeds of the sale of the land in' the present plaintiffs for the purpose therein specified, and only for such purpose. This is so, because the statute (The Code, § 1405) prescribes that “all proceeds from the sale of real estate (of the testator or the intestate, as the case may be), as hereinafter provided, which may not be necessary to pay debts and charges of administration, shall, notwithstanding, be considered real assets, and, as such, shall be paid by the executor, administrator or collector to such persons as *348 would have been entitled to the land had it not been sold.” So that, regularly and properly,' the plaintiff was charged with the money in question; he was not required, in any case, to pay it or deposit it with the Cleric of the Court, nor had he authority or right to require the Clerk to receive it. There is no statutory regulation that so provides. The Court below seems to have thought that the fund might be deposited with the Clerk, not improperly, after the plaintiff had completed the administration of the estate iri his hands, as allowed in the case provided for in the statute (The Code, § 1543). This is a misapprehension of the meaning of that provision. It only applies to “any moneys belonging to the legatees or distributees of the estate of his testator or intestate,” <&c. The fund in question did not belong to the legatees or distributees, but to the heirs at law of the intestate, or to such persons to whom they had disposed of their rights. We are, however, of opinion that the money in question came into the hands of the defendant, who was Clerk, as Clerk, by “ color of his office,” and that, therefore, the defendants’ sureties are bound to the plaintiff for the same. The Clerk, clearly, signed the receipts officially, and intended to do so. The letters “C. S. C.,” usually and appropriately employed by such officers to indicate their official signatures and official acts, appended to his signatures to the receipts— his office — its nature and purposes — the recitals in the receipts — the reference to the sale of the land — to the special proceeding in which it was sold — the designation of the plaintiff as administrator of the intestate named — the nature of the whole transaction — all these things go to show that the Clerk received the money as Clerk, and that he and the plaintiff, at the time, in good faith, believed that he had authority to receive it as Clerk and hold it for proper purposes. It does not appear, nor is it suggested, that there was the slightest bad faith on the part of the Clerk or the plaintiff. Indeed, *349 in view of the nature of the fund, the Clerk might not, unreasonably, have thought he had the right, and that it was his duty to receive the money. Well-informed lawyers have insisted before us that he had such authority. Thus, the Clerk received the money by “ color of his office," in the sense of the statute, and the condition of the bond sued upon expressly embraces money so received by the principal in it. So receiving money implies that it is not received by virtue of his office, or according to law, in the case and in the way allowed and required by law, but otherwise. To receive money by “ color of his office,” in the sense of the statute, certainly embraces the case where the Clerk received it in good faith, and might reasonably believe he had the right and it was his duty to receive it for proper purposes. We need not decide now that it embraces other cases, because, as we have seen, the Clerk, in the case before us, received the money in question, believing, not unreasonably, that it was his official duty to receive it. That such is the true meaning of the statute is the more apparent from the provision therein, that the official bond of the Clerk shall embrace moneys received by him under an order or decree of the Court, although such order or decree shall be void for want of jurisdiction of the Court to grant the same, or for other irregularities. The purpose is to embrace within the scope of the bond all moneys received by the Clerk as such, in good faith, for a supposed lawful purpose, although it may turn out that it was improperly received and without legal sanction. Broughton v. Haywood, Phil., 380. The plaintiff relator can maintain this action. He is entitled to have the money in controversy, to the end he may pay the remaining unpaid debts and charges, if any, of the estate wherewith he is charged, and any surplus to the heirs at law of his intestate, or such persons as may, through them, be entitled to the same. *350 There is error. The judgment, as to the defendant’s sureties, must be reversed, and judgment entered in favor of the plaintiffs in accordance with the stipulation in the case agreed and submitted to the Court for its judgment. Error.