State ex rel. the Board of Commissioners v. Atkisson

Hanna, J. Alexander Aildsson was the recorder of said county, from August 19, 1853, until, and for the-term of, four years. Hie other defendants were his securities on. a bond for the “faithful and honest discharge of all the duties of his office.” This is a suit upon the said bond; and, for breach, it is alleged, first, that be failed to index twenty thousand deeds, &c., that were in his office at the time he assumed the [27] duties thereof; and, second, that he failed to keep up and continue the index to ten thousand deeds, &c., that came into said office, and were recorded, during his term. A demurrer to the complaint, on the ground that the facts x 7 ° stated were not sufficient, and for the want of proper parties, was sustained. This ruling presents the only question in the case. Under the statutes (1 R. S., p. 427; Acts 1855, p. 158,) if he had made necessary indexes to records in Ms office, of deeds, &c., recorded before he came into office, he would have been entitled to compensation therefor. Board of Com's, &c. v. Kromer, 8 Ind. 446. But he would not have been entitled to any thing, other than the regular fee for recording, for keeping up said index, by entering therein deeds, &c., recorded during his term. Turpen v. Board of Com's, &c., 7 Ind. 172; Board of Com's, &c. v. Sheets, ante, p. 22. So far as the pleadings show, we can not perceive that for failing to index the deeds recorded before he came in, any more than nominal damages could have been recovered, if that. The board have, they allege, paid his successor lor work which, if he had performed it, they would in like manner have been called upon to have paid him for. As to the other breach, the board avers that Morrison, the successor of said Atldsson, made the index of deeds, &c., recorded by said Atldsson, for which they were compelled to pay, and did pay, said Morrison. Did these facts constitute a breach of the bond, and if so, was it to the damage of the relator? We have no doubt that the failure of the recorder to perform the duty thus enjoined upon him, was a breach of his official bond; but whether a right of action, for such general failure, resulted to the relators, is a more difficult question. It is insisted that the bond secures to each individual a right of action for any injury which he might suffer from such neglect of'duty; but that as to the public, the remedy for such breach of duty is not on the bond, but by a criminal prosecution. And further, that it was not the duty of, nor was it obligatory upon, the county board, to. pay for continuing and keeping up the index. R. Cranford, for the appellant. C. L. Dunham, for the appellee. Perhaps the question turns upon this latter proposition; tor if the relators were authorized to pay the successor of Atkisson, for the work which he failed to perform, then it would appear to follow that they could maintain the suit. We are of opinion that they were authorized to make such payment. It may be that it was discretionary with them whether they would do so or not. As to that we need not decide/ They aver the payment. It was the duty of the office/ who recorded the deeds, &c., to make the index thereof, without additional compensation, either from the individual or the county; if he failed in that duty, the board could, for the public. interest and convenience, see that it was xieiformed by another, and pay that other a reasonable compensation for the work. This, in our opinion, would give a right of action on the bond of the officer, who was thus derelict in duty, to the injury of the public. The demurrer should have been overruled. . Per Curiam. — The judgment is reversed, with costs. Cause remanded, &c.