Turner v. Clark County

Napton, J. The question in this case is, whether a bond and mortgage to a county, taken to secure the delinquency of a sheriff and ex officio collector, whose securities on his official bond were at the time perfectly good, is of any validity. The county court, it seems, in this case, had directed a suit upon the sheriff’s bond, and during the pendency of such suit, accepted the bond and mortgage now [244] in question, and dismissed the suit against the officer and-his securities. The county sued on the mortgage, obtained a judgment of foreclosure, and bought the land sold under the execution, and received a deed, which was duly recorded. It is clear that the county court had no power to exact such a mortgage, certainly none to substitute it for the original bond, and thereby discharge the securities. But the bond and mortgage were voluntarily given to secure an indebtedness to the county. Is there any statute-which protects this ?■ In the revised code of 1845, is, found this section : “All deeds, grants and conveyances made, acknowledged and recorded as other deeds, conveying lands, tenements, or hereditaments to any county, or the inhabitants of any county' and their successors, or to the-Governor, or any person by whatever form of conveyance-for the use andbenefit of any county shall vest in such county-in fee simple all the right, title, interest and estate -which the grantor in such deed had, at the time of the execution thereof in the lands thereby conveyed.” This section has been retained in the revisions of 1855 and 1865, and is now found rather strangely in the present code, under the head of Uses and Trusts, 2 Wag. Stat., p. 1352, Sec. 13. It may be that the intention of the court in dismissing the suit against Ensign and his securities, and taking the bond and mortgage, wyas-to release the securities, and it may be true that the effect of their proceeding through lapse of time, has so resulted. But we are unable to see why this destroys the title of the-county to the land conveyed to it, to secure an indebtedness to the county. It may be that more effectual modes-of securing the collector’s delinquency were provided by law, and that the county court, as the manager of county revenues, acted unwisely in accepting the mortgage of the collector. But was the deed to the county therefore void ?' See Barry County to use of State School Fund v. McGlothlin, 19 Mo. 307. The decisions of this court in regard to mort [245] gages to secure the school fund, are not applicable to this, case. The judgment of the circuit court is reversed and the case remanded. The other judges concur. Reversed.