Saltenberry v. Loucks

Rost, J. The Act of 1844, under which the defendant Richard Loucks was appointed Receiver and Register of the Land Office, required that he should give good and sufficient security to the State for the faithful discharge of the duties of the office, and the bond sued upon was given in compliance therewith. In 1851, the plaintiff made application to Loucks to purchase certain lands, and paid him the sum of $725; whereupon Loucks delivered to him a certificate showing that said sum had been paid by the plaintiff, as required by law, [96] and that he was entitled to the land. The money paid to Loualcs was not paid over by him to the Treasurer, and he made no entry of the purchase on his books. The successor of Loualcs, for these and other reasons, refused to issue a patent for the land. The question raised by the issue is, whether the securities of Loualcs, on his bond, are liable to the plaintiff. The Act of 1844, requiring the bond to be given, does not provide for the transfer or assignment of it to individuals aggrieved by the register. It is, on its face, in favor of the State alone, and we do not see how the obligation of the sureties can be extended, by implication,'so as to inure to the plaintiff’s benefit. But if it could be, the plaintiff’s case is not made out. The condition of the bond is, that Loualcs shall well and faithfully do and perform all the duties required of him bjr law in his capacity of Register of the Land Office. To receive the price of the lands sold, is not one of the duties required of him by law—that duty is expressly assigned to the State Treasurer. The plaintiff, knowing this, deposited the money in the hands of Loualcs, thus constituting him his agent to make the payment. It is no part of the undertaking of the sureties to warrant against the risks of that agency. The grounds that the land sold was not in the district of Loualcs, and did not belong to the State at the time of the sale, would only give the plaintiff the right to have the money refunded, if he had paid it into the Treasury. Land thus situated can no more be said to have been sold, in discharge of the duties of the office, than if it had been in Maine or California, and the maxim of caveat emptor would apply equally to either case. Judgment affirmed, with costs.