Faust v. Murphy

Cooper, J., delivered the opinion of the court. The declaration in this cause is vague, uncertain and defective. If any official liability of R. C. Patty, the late chancery clerk of Noxubee county, is stated at all, it is only by inference, suggestion and argument that it is to be discovered. We say this much to exclude the conclusion that the judgment of the court below would have been reversed by us but for the other grounds on which it is supported, and which we consider and decide at the earnest request of counsel, without regarding the defects of the declaration. Stating the case as we suppose it was intended to be set forth, the facts are as follows : Robert C. Patty was elected to the office of clerk of the chancery court of Noxubee county for the term beginning on the first Monday of January, A.D. 1888. He gave an official bond as prescribed by law, with J. W. Patty, Charles B. Ames and Jacob Holberg as sureties thereon, by the terms of which the obligors bound themselves, “their heirs, administrators and executors,” conditioned that the said Robert C. Patty should “faithfully perform and discharge all the duties of said office of clerk of the chancery court, and all acts and things required by law or incident to the said office during his continuance therein.” During his said term of office he was, as such officer, appointed guardian of the estate of Annie I. Faust, a minor. The said Patty died in December, A.D. 1890, and; upon settlement of his account as such guardian, made by his administratrix, a balance was found due to his ward, for which a decree was made by the court having jurisdiction of such guardianship, on which execution has been properly issued and returned nulla bona. — 126 — In August, 1888, C. B. Ames, one of the sureties upon Patty’s official bond, died, which fact Patty communicated to the board of supervisors of Noxubee county, and, he consenting thereto, and waiving the notice provided by statute, the said board ordered that new sureties be supplied in the room and stead of C. B. Ames, deceased, within thirty days from the date of said order; and'within that time T. S.Murphy, J. L. Griggs and B. J. Allen subscribed said official bond in the 'room and stead of C. B. Ames, deceased. The breach of the bond assigned is, that neither the said Bobert C. Patty during his life, ñor his' administratrix since his death, have accounted with and paid over to the said minor, Annie I. Faust, or to her guardian, Walter Price, duly apappointed to such guardianship since' the death of said Patty, the estate and rhoneys of the said minor in his hands a's such guardian. This action is against T. S. Murphy, J. L. Griggs and B. J. Allen only, neither J. W. Patty nor Jacob Holberg nor the representative of O. B. Arnés, deceased,' being sued'. The defendants demurred to the declaration as presenting no cause of action against them, and their demurrer was sustained, from which judgment'fhe plaintiff appeals. It is argued for the appellees : (1) That 'the' sureties upon the official bond of the chancery clerk’ are not liable for 'his default as guardian touching the estates of minors committed'to him Sis süch clerk; (2) that’if such sureties are so liable, yet they, the appellee's, never became'bound as such sureties upon such bond, because there was no authority in law for the board of supervisor’s of Noxubee comity to require sureties to be supplied oil the official boh’d of said blerk in the placó of O. B. Ames, deceased, and no authority in law for them to accept additional or substituted sureties thereon. Section 2117 of the code of 1880 provided that “if no one will qualify as'guardian of a ttiiiior who'has'property, áhd-is in' need of a guardian, it shall be the duty of the chancery court of the county in which such minor resides to 'appoint — 127 — the clerk of such court to be the guardian of such minor, who shall discharge the duties of guardian ■ of such minor according to law, and under the orders and direction of the chancery court, and subject to be dealt with as for a contempt for any failure so to do; hut he shall not be required to give bond as guardian ,in such case, and his official bond shall cover his liability as such guardian, and he shall be bound and liable in all respects as any other guardian.” It is conceded by counsel that under this law the sureties of the clerk would he liable for his acts as guardian, btit they contend that this section of the code, in so far as it provi ded for such liability, was repealed by the provisions of an act approved March 9, 1882 (Laws, p. 114), which provided: “ That in all cases arising under § 2117 of the code of 1880, and where the estate of the minor exceeds the sum of ten thousand dollars, and the clerk of the chancery court is appointed to discharge the duties of guardian of such minor under the provisions of said § 2117, the chancery court shall require of such chancery clerk a bond, with good and'approved security, in the amount required for guardians’ bonds, and conditioned and payable as such bonds are now required bylaw. “ Sec. 2. That in all cases wherein the chancery clerk is appointed to- dischárge' the duties Of guardian of a minor under § 2117 of the code of 1880, and'whose estate is 'less than ten thousand dolíais, the chancery court niay require of such chancery clferk a bond, with sufficient sureties, payable and conditioned as Required by law for gualdian’s bond, and in such penalty as mhy be deemed sufficient by'the court; and if the chancery court fails to require siich bond, any relative of the minor may petition the court to require such bond to he given; or, if one has been given; may petition the chancery court' for a'bond in a larger penalty or with better security, and the chancery court shall decree thereon according to right and justide and the protection Oí thé estate of the minor.” — 128 — The argument of counsel is that under the code the liability of the official bond is declared, coupled with the provision that no bond as guardian shall be required; that the act of 1882 provides that, where the estate of the minor exceeds in value ten thousand dollars, a bond as guardian shall be required, and, where the estate is of less value, such bond may be required by the court; and if it is not, that any relative of the minor may, by petition, secure its execution; .that the provisions of this act are directly in conflict with that of the code declaring that no bond shall be required, and therefore both cannot co-exist; that in this conflict the last expression of legislative will must prevail, and that if this code provision falls, so must that connected with and dependent on it, which declares liability on the official bond for the acts of the clerk as guardian. There is no suggestion in the pleadings here that the estate of Annie I. Faust exceeded in value the sum of ten thousand dollars; and since no bond as guardian seems to have been required by the court, as it would have been the duty of the court to have required if the estate had been of that value, we must, upon the presumption of due performance of official duty, assume that the estate was not of that value. We will leave the question of the effect of a failure to require bonds in that class of estates open for determination when it arises. We fail to perceive any conflict between the second section of the act of 1882, having reference to estates of less value than ten thousand dollars, and § 2117 code 1880. By the code, liability on the official bond of the clerk is declared, but by the act of 1882 it is fui’ther provided that a specific bond may be required. When this is not done, the code provision controls. But the appellees were never, in law, the sureties on the official bond of Batty, the chancery clerk. We are unable to distinguish this case from that of Mathews v. The State, 57 Miss., 1. — 129 — The death of Ames, one of the sureties, did not in any degree affect the bond of the officer. The surety had bound himself, his heirs, executors and administrators that Patty, the clerk, should faithfully discharge his duties as such officer “ during his continuance in said office.” His death did not release his estate from liability for future defaults by the officer. Hightower v. Moore, 46 Ala., 387; Green v. Young, 8 Greenleaf, 14 (22 Am. Dec., 218); Royal Ins. Co. v. Davies, 40 Iowa, 469; Chamberlain v. Dunlap, and note thereto, 22 Am. St. Rep., 807; Bank v. Yard, 150 Penn. St., 351. Section 403 of the code of 1880 has effect only to cure irregularities in bonds which by law are required or may be given. Section 411 of said code has no relation to the point involved in this case. It relates to the subject of new bonds to be given by public officers under the states of case therein provided for. But a new bond was not required in this case, and hence this section has no relevancy to the question involved. The board of supervisors and the officer manifestly proceeded under § 413 of the code, which declares that “ when the insufficiency of an official bond arises from the fact that some of the sureties have removed or become insolvent, or when some of the sureties petition for relief and others do not, the place of such insufficient or such relieved sureties on the bond may be supplied by new and approved sureties executing the original bond, subscribing it with an explanation of the purpose for which they subscribe it; and this shall not in any manner vary the liability of the former sureties on the bond, except as released, as aforesaid, on their petition for that purpose, but such bond shall bind all its subscribers, and the change thus made shall be noted on the record of the bond.” It is not pretended that any of the sureties on the bond had removed or become insolvent, nor had any one of them petitioned for relief from the bond, and it is only under such — 130 — circumstances that authority exists for the board to require or receive substituted sureties. The judgment is affirmed.