Hill v. Fleming, &C.

• Decision Date: 20 February 1908
• Citation: 128 Ky. 201
• Court: Kentucky Court of Appeals
• Parties: Hill v. Fleming, &c.

128 Ky. 201

Hill v. Fleming, &c.

Court of Appeals of Kentucky.

February 20, 1908.

Appeal from Kenton Circuit Court.

W. McD. SHAW, Circuit Judge.

Judgment for plaintiffs, defendant appeals — Affirmed.

S. D. ROUSE and ROBERT C. SIMMONS for appellant.

W. L. SHINE and LESLIE T. APPELGATE for appellees.

OPINION OF THE COURT BY WM. ROGERS CLAY, Commissioner — Affirming.

On May 19, 1903, appellant, Thomas Hill, loaned to I. B. Northcutt, deputy sheriff of Kenton county, the sum of $500. On said date Northcutt had an account with the Bank of Independence in his own name which account represented all the funds which he deposited in said bank; part of same being his individual funds, anl part being money collected by him on account of taxes or executions in his official capacity. By far the greater portion of the deposit, however, consisted of taxes due the county and the State of Kentucky. On June 1, 1903, Northcutt had to his credit in the bank above mentioned the sum of $137.56, and continued to carry this account with the bank until October 30, 1903, making deposits to and drawing checks thereon. On October 30, 1903, he had to his credit on his individual account the sum of $6,037.84. On the same date he opened an account in the name of "I. B. Northcutt, Deputy Sheriff," and checked to that account $5,979.26, depositing the same on account of "I. B. Northcutt, Deputy Sheriff." On October 30, 1903, he drew a check to E. P. Bland for $12.35 on the account and in the name of I. B. Northcutt, and on October 31st a check to M. D. McInerney for $46.23, thus exhausting and closing the account of I. B. Northcutt. The account of "I. B. Northcutt, Deputy Sheriff," was carried from the 30th day of October to December 1st following, on which date there was in said account $1,568.73. On December 1st he gave appellant, Hill, a check for $500 in payment of the loan from Hill, and signed it "I. B. Northcutt, Deputy Sheriff." On the same day he drew a check payable to himself for $1,068.73, signed it "I. B. Northcutt, Deputy Sheriff," and collected the money on same. On the same day he committed suicide.

Appellant had no knowledge that Northcutt was short in his accounts. Northcutt kept but one account at the bank which was that of "I. B. Northcutt, Deputy Sheriff," from October 30, 1903, to the day of his death. At the time of his death he was insolvent. Appellant owns 45 acres of land, not exceeding in value $1,000, on which he lives with his family. Upon this land there is a mortgage to a man named Vest, which was executed by appellant to secure the loan, the proceeds of which were turned over to Northcutt. At the time Northcutt, as deputy sheriff, gave appellant the check for $500, he had collected of the taxpayers of Kenton county taxes for which he had not accounted to the sheriff of said county, or to the State or county, in excess of the amount he had in the bank to his credit as deputy sheriff. Indeed, he was short in his account in the sum of $2,500. Appellees George S. Flemming and others were securities on the bond of Northcutt, deputy sheriff, which was executed to McInerney, sheriff of the county. Appellees paid to McInerney, as sheriff, a sum much larger than the amount of the check given by Northcutt, as deputy sheriff, to appellant, Hill. The payment so made by appellees to McInerney for Northcutt was for money the latter had collected as deputy sheriff. Northcutt's only income was a salary of $100 per month as deputy sheriff. Appellant, Hill, placed the proceeds of the check of $500 to his credit in the Bank of Independence. This suit was brought by appellees, sureties of Northcutt, to enjoin the Bank of Independence from permitting appellant to withdraw or use, and to enjoin the latter from withdrawing or using, the money so deposited to appellant's credit. From a judgment below in favor of appellees, this appeal is prosecuted.

For appellant it is insisted that the taxes on deposit to the credit of Northcutt as deputy sheriff constituted merely a debt, and the State and county had no such specific property therein a entitled them to pursue and claim same in the hands of others. In support of this contention, which is argued with great ability, counsel for appellant cite us to the cases of Perley v. County of Muskegon, 32 Mich. 132, 20 Am. Rep. 637, and Steinbach v. State, 38 Ind. 483. In the former case it was held that deposits by a collecting officer or custodian, not being special deposits, but general ones, are not the property of the county, but that the depositing official is a debtor to the amount of the deposit; that such funds cannot be taken possession of by his successor, but are to be delivered over by the official himself, if alive, and, if dead, by his personal representative. In the course of the opinion the court said: "It is only on the theory that the treasurer or officer is a debtor at all events, and that the title vests in him personally, that his representatives can have anything to do with the funds. Accordingly his liability is absolute, and not affected by unavoidable loss or accident, which, in case of bailments, could not fail to release him without injustice." In the case of Steinbach v. State, supra, a township trustee kept bank deposits in which he mixed his own and the township funds, and overdrew his account and paid township debts with the overdraft, for which he gave his official duebill. It was held that the deposit account was a private matter, in which neither the township nor the sureties on his bond had any concern, and on...