Marney v. State ex rel. Vance

BIRCH, J. Vance, using the name of the State, sued Mamey and others upon the official bond of Hamilton, as sheriff of Boone county. It appears that on the 13th of August, 1841, a judgment in partition was rendered in the Boone Circuit Court, and that at the December term of the same year, an order was made directing the sheriff to sell the land at the April term then next ensuing, upon a credit of 6, 12 and 18 months, and to make conveyances upon the payment of the purchase-money. The sheriff made the sale accordingly, during his first term, but collected the money, in part, and reported his proceedings during his second term. He collected the balance of the money after the expiration of his second term of office, receipting for it, and transacting the business throughout as sheriff. The declaration contains two breaches; first, that the sheriff made the conveyance without receiving the' purchase-money; and secondly, that he collected the money and neglected to have it in court to be paid over to the parties, and had refused to pay Vance his portion, and' had converted it to his own use. The plaintiff had judgment for his distributive share of the proceeds of the sale; to reverse which, the defendants who were securities on the first bond of the sheriff, have brought the case to this court. Was it the duty of the sheriff, in virtue of liis first election, to complete the business of collecting the money and transferring the land ? If so, he did not “faithfully discharge all duties imposed on him by.his office,” and his securities are liable for his default. The mere manner in which he subsequently signed his name, in conducting and winding up the business, can . scarcely illustrate, much less affect the merits of the case. The views which have occurred to us, upon reference to our various statutes concerning Partition, render it unnecessary to choose between, or attempt to reconcile the apparently conflicting authorities to which we have been referred upon the general subject. By the act of the 15th of February, 1841 (covered by the bond sued on, and passed before the order of the court alluded to), the powers and duties previously intrusted to and performed by commissioner in partition, in respect to the sale of the land and all subsequent proceedings (including the payment of distributive shares), were devolved upon the sheriffs of counties. We throw out of view, in this connection the additional declaration of the Legislature respecting the liability of securities, “in the same manner as in cases collected on execution,” such provision being merely cumulative in its application to the facts of this case. By the second section of the act, the sheriff is authorized to complete such business in partition as he may have commenced during his term of office, including the collection and disbursement of the money, unless the Circuit Court, by order, direct otherwise, which is not pretended in this case. It became, then, the duty of the sheriff who commenced, to conclude the business, no other person having authority to do so ; and the question involved in this suit is in no wise affected by the fact that he was his own successor, and gave a new bond with different securities. He must be presumed to have executed receipts, &c., as “sheriff” under his first term, for lie had no authority to act in the premises in any other capacity.(a) The third section provides a proper compensation for these services, and to deny the authority of the Legislature, thus to enlarge the duties of the sheriff, under peril of having thereby no security for its fiiithful performance, need only to be reflected upon to be abandoned. The recognition of such a principle, having scarce an imaginable limit to its ramification, -would virtually close the statute book of the State against all reforms which might concern the receipt and disbursement of money, by the countless officers and fiduciaries of the State, public and private. Such a proposition, therefore, although lying at the root of the only argument which can be adduced against the exposition of the law, as given by the Circuit Court, requires no refutation, and the judgment of the Circuit Court is therefore affirmed. Footnotes [a] (a) See Wag. Stat. p. 970, §31, and p. 971, §§ 34, 35, 38. See Ingram v. McCombs, 17 Mo. R. 558.