Johnson v. Bobbitt

Terral, J., delivered the opinion of the court. In 1885 W. P. Lowry, the clerk of the chancery court of Pontotoc county, was appointed a commissioner to sell the real and personal property of the estate of William Ward, deceased, for a division of the proceeds thereof among the heirs of said William Ward, of whom Ernest Bobbitt, the appellee [plaintiff below], was one. Lowry made the sale of the property, received the proceeds of the sale, and upon a report thereof he was by a decree of the chancery court directed to pay out said moneys to the heirs of the said William Ward, and [346] to pay to the guardian of Ernest Bobbitt, who was then a minor of tender years, the sum of $98.39. All the proceedings relating to.said matter happened during the term of office of said Lowry, commencing January, 1884, and ending January 1888. Bobbitt, neither at the time of the making of the decree for distribution, nor afterwards, had a guardian. Coming of age, he was refused payment of his distributive share of the estate, when'he brought suit against Lowry and Johnson and others, the sureties of Lowry on his official bond for his term of office, commencing January, 1884, which was made by §1807, code 1880, “to cover all his official acts, and all moneys which may come into his hands according to law, or by order of the court or chancellor. ’ ’ There was a special bond given by Lowry by order of the court, before the sale. was made. He was also re-elected to said office in November, 1887, for a second term, and gave bond accordingly. Appellant was not a surety on the two last named bonds. He contends that the sureties on the latter are liable for Bobbitt’s distributive share of said estate, if in fact any are so liable. He insists, too, that Lowry himself is not liable, because Bobbitt never had a guardian, and the condition of its payment was inoperative. 1. The contention of Johnson that Lowry himself, as well as he [Johnson], is discharged of any liability upon said bond, because Bobbitt never had a guardian, is too airy and unsubstantial to be a basis of judicial action. Bobbitt, being now of age, can, if he remains sane, have no 'guardian; and, if Johnson’s contention be law, he and Lowry are discharged from a payment of what is admitted to .be due, and which never has been paid. We think the decree to pay the money to Bobbitt’s guardian included the duty and obligation to pay it to Bobbitt himself if it should not during his infancy have been paid to his guardian. 2. The claim of Johnson that the sureties only upon the special bond of Lowry are liable for the default is also, we think, not to be supported, because the statute expressly de [347] dares it to be a cumulative security, and undoubtedly the legislature may so provide. Therefore, if cumulative, it does not affect the liability of Lowry or Johnson on the bond here sued on. If its execution should operate to make the sureties on it jointly liable with the sureties of Lowry’s general bond, the most it could affect would be to give the sureties on each bond, if paid by the sureties of one bond only, a right of contribution against the sureties not sued or not paying. 3. The effort of Johnson to throw the burden of his surety-ship on the official bond of Lowry for the second term of office as chancery clerk must fail-also, because Lowry had no successor in the administration of the funds of the Ward estate, as all the proceedings and the final decree relating to its distribution were made during Lowry’s first term of office. That Johnson is legally liable for the entire default, we think, is supported by authority. The default of Lowry (there being no proof on the subject) must be presumed to have occurred during the first term, because it was then received and ordered to be paid out. He never received the money as his successor. He had no successor as to this money. “The obligation to hold and pay the money to the party entitled to it, when called for, is incurred when the money is received, and, if not so paid over, without other proof, the bond then in force is responsible.” Morgan v. Smith, 95 N. C., 396, 403; Thomp. Pub. Off., sec. 217; Higginbottom v. Watt, 23 Ark., 304; Dabney's Adm’rs v. Smith’s Legatees, 5 Leigh, 13; note to Crawn v. Com., 10 Am. St. Rep., 845; s.c., 6 S. E., 620. Affirmed.