Board of Sup'rs of Lauderdale County v. Alford

• Decision Date: 05 December 1887
• Citation: 65 Miss. 63,3 So. 246
• Court: Mississippi Supreme Court
• Parties: BOARD OF SUPERVISORS OF LAUDERDALE COUNTY v. W. F. ALFORD et al

3 So. 246

65 Miss. 63

BOARD OF SUPERVISORS OF LAUDERDALE COUNTY v. W. F. ALFORD et al

Supreme Court of Mississippi

December 5, 1887

APPEAL from the Chancery Court of Lauderdale County, HON. SYLVANUS EVANS, Chancellor.

In 1883, W. F. Alford was elected treasurer of Lauderdale county for the years 1884 and 1885. On the first Monday of January 1884, he qualified and executed his official bond as treasurer. One L. K. Latham was employed by Alford as his agent to receive and disburse the finds of the county during this term. At the close of the term Latham failed to account to Alford for the moneys received to the amount of $ 6,441.97. Thereupon, on Jan. 12, 1886, Latham, with L. A Ragsdale as surety, executed his promissory note for $ 6,441.97, in favor of Alford, to cover this deficit.

In November, 1885, Alford was re-elected treasurer, and on the first Monday in January, 1886, qualified and duly executed a treasurer's bond for the years 1886 and 1887.

At the meetings of the board of supervisors, on the first Mondays of January and March, 1886, respectively, Alford presented his account as treasurer for 1884 and 1885, showing the moneys received, including the $ 6,441.97 which had been taken by Latham, and then and there counted to them the full amount that ought to have been in the treasury. At the June (1886) meeting of the board, Alford failed to produce the requisite amount by $ 6,441.97, and then for the first time admitted the deficit and acknowledged that he had temporarily secured the necessary money to be counted at the previous meetings in order to conceal the fact that there was a deficit.

Thereupon the board of supervisors instituted an action at law against the sureties on the first bond. Alford also instituted suit on the note executed to him by Latham and Ragsdale. Afterwards both Latham and Ragsdale died. The board of supervisors then exhibited this bill, against Alford and the sureties on the two bonds and the representatives of Latham and Ragsdale, in which the above facts were alleged. The bill prays, that inasmuch as serious doubts have arisen as to which set of sureties, that is those on the first or second bond, are liable, that both be required to appear and interplead, and the liability fixed where it belongs, so as to avoid a multiplicity of suits. The bill further prays that the county be subrogated to the rights of Alford against Latham and Ragsdale; that a decree be entered in favor of the county against their representatives to the amount due on the note executed by them, and that the realty of their estates be ordered sold to satisfy the same, the personalty being insufficient.

To this bill there were three separate demurrers. The sureties on the first bond demurred on the grounds, amongst many others (1) that there was an adequate remedy at law (2), that the defalcation occurred while the second bond was in force (3) that Alford had no authority to allow or appoint Latham to act as his agent in receiving and disbursing funds. The sureties on the second bond demurred on the first and third grounds above set out, and also on the ground that the defalcation occurred while the first bond was in force, and many other grounds not necessary to set out. The representatives of Latham and Ragsdale demurred on the grounds that (1) complainants were not entitled to be subrogated to the rights of Alford (2), that the note was void and without consideration. The chancellor sustained all three demurrers. The complainant appealed.

Decree reversed and demurrer overruled.

Walker & Hall, for the appellant.

1. It is alleged, as a matter of law, that the Court has no precedent for an interpleader in a case like this.

In the case of Whitfield and Billups v. Evans, 56 Miss. 489, this court approved as eminently proper a suit in equity against two sets of sureties on two several administrator bonds.

The case of The State use, etc. v. Brown, 58 Miss. 835, is in point. That was a suit in chancery on two sheriff's bonds executed respectively, Dec. 29, 1873, and Dec. 28, 1874. The prayer of the bill was similar to the one in the case at bar, to wit: First, For an account to ascertain full amount due the county. Second, That the two sets of sureties interplead to ascertain the liability on the respective bonds. Third, For a decree against the proper sureties according to such liability.

In that case the chancery court sustained a demurrer to the bill and dismissed it out of court. This court reversed the case, holding that the chancery court was the proper forum notwithstanding complainant had a remedy by separate suits at law. See also Gay v. Edwards, 30 Miss. 219.

2. Let us assume, as contended, that Alford had no authority to empower Latham to act in the premises, and that every act of Latham was absolutely without any binding force upon the sureties on Alford's official bond; then, we submit that the very fact of his failure to perform said duties in person constitutes a breach of his official bond, and that the sureties must respond to all the damages sustained by reason of his failure to "faithfully observe and discharge all the duties of his office." Sec. 367, 368, Code 1880, 63 Miss. 186; 51 Miss. 212.

3. We predicate the right to subrogation upon the fact that Lauderdale county's money furnished the consideration of said note, and that in legal effect Alford, as the payee in said note, is a mere trustee for Lauderdale county.

Alford, the payee, is, in the eyes of a court of equity, a trustee for the county; and whether said note was the result of a scheme to defraud the county, or of an honest purpose on the part of Alford to secure the money which Latham had embezzled, the county should be permitted to recover her own money represented by said note; and in order to do so should be subrogated to all the rights of Alford therein.

G. Q. Hall, of counsel for the appellant, argued the case orally.

Whitaker, Dial & Whitherspoon, for the appellees.

Both bonds cannot be liable for the same default, and since the bill shows that the only default sued for occurred during the operation of the first bond, it would seem impossible that the bill could show any liability on the second bond. Is a surety on a treasurer's bond liable for money paid to an agent of the treasurer and not to the treasurer himself? We submit they are not liable. In support of this proposition we cite the case of Joseph Bryon, plaintiff in error v. The United States, 1 Black, 140.

Woods, McIntosh & Williams, for the representatives of the estates of Ragsdale and Latham.

1. We have here two sets of...