County Commissioners of Ramsey ex rel. Lee v. Brisbin

[453] By the Court. Berry, J. This action is brought against defendant Tullis, as principal, and the other defendants, as his sureties, upon his official bond as sheriff of Ramsey county, for the purpose of recovering certain redemption money, alleged to have been received by said Tullis, as said sheriff, for the use and benefit of certain judgment creditors, to whoso rights the present relator has succeeded. Defendants Bri'sbin and Roberts demurred to the complaint, as not stating a cause of action, and from the order overruling their demurrer they alone appeal to this court. The complaint alleges that Tullis was duly elected sheriff of said county for the term commencing January 1st, 1860; that on ‘the 2d day of January, 1860, Tullis as principal, and his co-defendants as sureties, executed unto the board of supervisors of said county the bond, upon which this action is brought, (being in the usual form of a sheriff’s official bond;) that, at “a meeting or session of said board” on the 4th day of January, 1860, the said bond and sureties were duly approved by said board; that on the same day, “ at a special meeting or session of said board, Tullis took the oath of office prescribed by law; and that on the same day said Tullis entered upon the discharge of the duties of said office, and continued to hold said office and perform the duties thereof for a long period thereafter, to-wit: up to the 6th day of January, 1862.” The facts, upon which plaintiff seeks to charge defendants, are alleged in the complaint to have taken place between the first day of August, 1860, and the 1st day of January, 1862. Appellants object to the complaint, because it does not show that Tullis was qualified as sheriff at the regular January session of the county board as provided in section 50, ch. 7, Pub. St.; and because it does not allege that the oath required by law was subscribed to by Tullis and certified on the back of his certificate of election, or filed or recorded in the office of the [454] register of deeds; nor that any approval was endorsed on the bond; nor that said bond was ever filed in said register’s office, as provided by sections 49 and 133, ch. 7, Pub. St. Appellants argue that, in view of the provisions of the section referred to and sections 47 and 136 of the same chapter, the complaint does not allege facts showing that Tullis qualified himself to enter upon the duties of the office of sheriff, and that he would not be authorized to act as sheriff, nor could he hold the office of sheriff nor appoint a deputy, until qualified as by the statute prescribed. Not to consume space in presenting other answers to these objections, we are of opinion that they are all disposed of by a single consideration. Tullis was unquestionably sheriff de facto, for he came into office by color of title, that is to say, by due election; he had taken the oath of office and executed the proper bond; had thereupon entered on the discharge of the duties of the office, and he continued to hold the office and perform its duties till after the acts and omission for which plaintiff seeks to hold him responsible in this action. In other words, he was sheriff by color of title, and the acting sheriff, and therefore sheriff de facto. (People vs. Collins, 7 Johnson 550; Greenleaf vs. Low, 4 Denio 168; Buckman vs. Ruggles, 15 Mass. 182; Conover vs. Devlin, 15 How. Pr. Rep. 477.) Being sheriff defacto, and exercising the functions of sheriff, his co-defendants are bound for him by the very terms of the bond, which is conditioned that he shall “ well and faithfully in all things perform and execute the duties of sheriff * * during his continuance in office ” And irrespective of the particular language of the bond, being sheriff de facto, his acts as sheriff were as valid, so far as third persons, having any interest in the acts done, and the public were concerned, as the acts of a sheriff de jure. In performing such acts he was sheriff to all intents and purposes, [455] except in favor of himself. See authorities supra; People vs. Stevens, 5 Hill 630; Bentley vs. Phillips, 27 Barbour 526. As respects such acts, so far as such third persons and the public are concerned, his official character as sheriff is not to be questioned collaterally. (Fowler vs. Beebe, 9 Mass. 234; Hall vs. Luther, 13 Wend. 492; Conover vs. Devlin, supra; People vs. Hopson, 1 Denio 580; Bucknam vs. Ruggles, supra; Fake vs. Whipple, 39 N. Y. 399.) So far then as the above mentioned objections of appellants to the complaint are concerned, they are not well founded. Appellants further object to the complaint that it does not show that the bond was ever delivered, since it does not allege that it was deposited by Tullis in the office of the register of deeds, as required by the statutory provisions before cited. It is alleged that it was duly approved by the board. This implies delivery, for when a sheriff elect presents his bond for approval, he offers or tenders it to the board, and, by approving the same, the board accept it as his official bond: the contract is then complete, and the tender becomes a delivery. Apthorp vs. North, 14 Mass. 167; Broome vs. United States, 15 Howard 143. The only objection made by the appellants, which remains to be considered, is, that the complaint does not show that the rcdemptioner therein mentioned had any authority to pay the redemption money to the sheriff, or that the sheriff had any authority to receive it. It appears that a pluries execution was issued to Tullis’ deputy sheriff upon a judgment in favor of a firm to whose rights in the premises the present relator, Lee, has succeeded; that, by virtue of said execution, said deputy levied upon certain real estate belonging to the judgment debtor, and duly sold the same for the balance due on the judgment, with interest and costs, to the judgment creditor, who received and duly filed and recorded a proper certificate of sale; and that the execution was returned wholly [456] satisfied by said sale, and tbe judgment thereupon satisfied of record. The complaint then proceeds to allege that on the 21st day of Nov. 1861, the day before the expiration of the year of redemption, one Symonds, caused to be paid to said sheriff Tullis, in redemption of said premises, the full amount necessary to be paid for the redemption thereof from said sale; that such redemption was made on a mortgage executed by the judgment debtor, which mortgage was a lien upon said premises; that said redemption moneys were paid to said sheriff for the use and benefit of the relator; that on the said 21st day of November, said sheriff executed, acknowledged, and delivered to said Symonds a proper certificate of redemption, which was duly filed and recorded. Now while the complaint does not allege in terms that Symonds was the owner of the mortgage or of any interest in it, so as to entitle him to redeem, it does allege that the money was paid in redemption of said premises; that the redemption was made ; and that the redemption moneys were paid to Tullis for the use and benefit of the relator. While, then, the complaint may be open to the charge of indefiniteness or uncertainty, we think it not demurrable. The redemption, which it thus alleges to have been made, is to be presumed to be legal, (in the absence of repelling facts,) since unless legal, it would not be a redemption. In addition to this consideration it might be contended with some force, we think, that the judgment creditor having elected to treat the redemption as valid, the sheriff is, by his acceptance of the money as redemption money and his issue of the certificate of redemption, estopped from questioning its validity; and that, therefore, as he has, by his refusal to pay over the money received, failed to execute his duties as sheriff, his sureties are liable for his delinquency by the very terms of the bond itself. Order overruling demurrer affirmed.