State ex rel. Chase v. Davis

Sherwood, J. This is a suit against the sureties of a sheriff on his official bond. The alleged delinquency for which they are sought to be made liable consists in the facts that certain parties, by a certain deed of trust, agreed and provided that in the event that Shackelford, the trustee, refused to act, that the then sheriff of Randolph county should execute the trust; that Shackelford refused to act, and the principal in the bond, Williams, [588] the then sheriff, as substituted trustee, sold the land under the deed of trust, and failed'to pay over a portion of the proceeds. The question propounded by the demurrer is, do these facts, thus briefly outlined, constitute a cause of action against the sureties ? .The answer is : No ! We have had in this state, ever since 1849, a provision whereby if a trustee in a deed of trust, failed to act, the parties in interest might by appropriate procedure have the circuit court to appoint the sheriff of the county to act in the room and stead of the recalcitrant trustee. 2 R. S. 1855, p. 1554. This being the case, whenever, thereafter, a sheriff was elected and gave bond, he and his sureties were presumed to bear in mind the contingency mentioned by the statute, and to contract in reference thereto ; for whatsoever the law annexes as the incident of a contract, becomes thereby as much a part and parcel' thereof as if in terms inserted therein. State ex rel. v. Berning, 74 Mo. 87. Hence it has been held by this court that when, in the circumstances mentioned, a sheriff sold land under a deed of trust, he acted colore officii, and his sureties were bound for any of his official derelictions. In ruling thus the sureties were not held liable beyond the strict letter of their contract. Here, however, a widely different case is presented. Parties by a private contract appoint beforehand whosoever, at an indefinite time in the future, may happen to be sheriff, to sell land under a deed of trust in case, etc. Who conferred authority on these private individuals to engage the. liability of third persons, who happened to be sureties on a sheriff’s bond % Suppose that the sheriff should fail to act in such case, would acti<?n lie on his bond for his failure in this regard 1 Clearly not. And why not ? Because the law did not, at the time the sheriff gave bond and entered upon the duties of his office, charge him or his sureties with any burden which ■private individuals might see fit to agree among them [589] selves to cast upon him. Nor did Ms sureties, by tbeir signatures to tbe bond of tbeir principal, sanction on bis part, or assume on tbeir own, any sucb obligation. Tbe authorities cited for defendants, as well as reasons tbe most obvioiis, fully sustain tbe action of tbe trial court, and tbe judgment is affirmed. All concur.