State ex rel. Buchanan County v. Smith

Scott, Judge, delivered the opinion of the court. It docs not appear very clearly that the doctrine in relation to the application of payments when two sets of sureties are concerned has any bearing on this case. If the collector, at the time he made the payments gave directions, as tó the manner in which they were to be applied, those directions will prevail unless the county treasurer was aware that the moneys received ought not to have been applied as directed. It would not be just that a party should receive money and knowingly apply it to a purpose which would operate as a wrong to others. If a collector of the revenue meets his creditor and with the public money pays him his debt, who is ignorant as to the source whence the money came, the debt is discharged, and the creditor can not be made to refund. But if the creditor, knowing that the money does not belong to his debtor, nevertheless prevails on him to discharge his debt, he is guilty of a fraud and may be compelled to restore the money received to the true owner. So when there is an account against a collector, and he settles it, without any knowledge on the part of the officer receiving the money that it was not applicable to that purpose, the payment will be good, and no one can disturb it. (Inhabitants of Colerain v. Bell, 9 Metc. p. —.) If the collector made an appropriation of the money received, by the treasurer, to the extinguishment of the indebtedness under the first bond, and the money received was due and collected under the last term, yet if the officer who received the payments was ignorant of the fact, and took the money in good faith, the transaction is a valid one; the debt is discharged and the securities for the term during which the money was due and collected are liable for [232] its misapplication. Although the law, when it falls to its lot to appropriate payments, will not suffer the revenue received under one term to be applied to the satisfaction of a defalcation incurred under another term, when there is a different set of securities for each term; yet if the officer himself will make the misappropriation, and the money is received in good faith by the party to whom the officer is indebted, such misappropriation can not be avoided and it will be binding on the sureties for the term during which it was collected. Although there may have been no application of the payment when made, yet the law, in making the application between two sets of sureties, will not presume that all the revenue received after the date of the last bond was received in discharge of the liability incurred by reason of such bond, and inflexibly appropriate it accordingly. At the expiration of the first term an officer may be indebted under the bond of that term. The day after, he gives a bond for a second term with different securities. Before he has time to collect any money due for the last term, before he becomes chargeable under it for any sum, he makes a payment into the treasury without directions as to the manner in which it shall be applied. Now it would be unjust to the securities on the first bond to apply this money to the relief of the sureties on the second bond. The circumstances under which a payment is made may show the year for which the money was received with which the payment was made. If, after an officer is properly chargeable with money for a term, he makes a payment, it may be presumed that it was on account of the indebtedness for that term ; yet it may be shown to be otherwise, and the circumstances under which it was made may indicate the source whence the money was obtained. The law is, that if the debtor does not make the application of the payment, the creditor may. If it is shown that the creditor has made application of the payment in good faith towards the extinguishment of the prior indebtedness, the sureties on the last bond will be bound by such application. It is only when the law makes the application of the payments [233] that the second set of securities is entitled to tlie sums that may be shown to have been received under their bond, giving them the benefit of the presumption to which reference has been made as to the time of the receipt of the money. (Seymour v. Vayslyck, 8 Wend. 420.) The facts are not stated with sufficient precision to enable us to determine whether there was a right in the collector to make an application of the payments at the time of the respective settlements under the first bond, in the event it should turn out that -no application was made by him or the county at the time the money was paid into the treasury. (U. States v. Kirkpatrick, 9 Wheat. 737.) The settlements made by a collector are only prima facie evidence against his securities. (Nolly v. Callaway County, 11 Mo. 447; U. States v. Eckford’s Ex’s, 1 How. 256.) But, although the sureties, may show the incorrectness of the settlement, or any errors or omissions in them, or in the previous settlements when their balance has been carried into the subsequent settlements, yet they will not be permitted to disturb the applications of payments made in good faith. The other judges concurring, the judgment will be reversed and the cause remanded.