Board of Supervisors of Oconto County
| Decision Date | 23 September 1879 |
| Citation | 2 N.W. 291,47 Wis. 208 |
| Parties | THE BOARD OF SUPERVISORS OF OCONTO COUNTY v. HALL, imp |
| Court | Wisconsin Supreme Court |
APPEAL from the Circuit Court for Oconto County.
The action is for the foreclosure of a mortgage executed by the defendant Ben. R. Hall to the county of Oconto, to secure the payment of four promissory notes, amounting to $ 7,500, made to the county by the defendant Richard L. Hall.
The case was here on a former appeal from an order of the circuit court overruling a demurrer to the complaint. 42 Wis., 59. A sufficient statement of the complaint will be found in the report.
After the cause was remitted, the defendant Ben. R. Hall answered alleging, among other things not necessary to be stated, that his codefendant Richard L. Hall was treasurer of Oconto county from January, 1863, to January, 1873; that during his last three terms of office he converted to his own use about $ 69,000 of the funds of the county in his hands as such treasurer; that he received said funds mainly on sales of lands for nonpayment of taxes, and of tax certificates belonging to the county, and from the state treasurer upon the delinquent taxes collected by him for, and the drainage funds belonging to, the county; that a large portion of the moneys so embezzled belonged and was due to the several towns in the county, under various statutes, and a portion thereof was due to the state on account of state taxes apportioned to the county; and that the defaulting treasurer (the defendant Richard L. Hall) made a proposition to the plaintiff board of supervisors for a settlement and adjustment of his defalcation, in which be offered to pay the county in various ways (partly in county orders) $ 32,500, of which amount $ 7,500 was to be paid in four equal annual installments, the payment thereof "to be secured by real estate or personal security--the said security as above to be satisfactory to the committee of the board." The proposition concludes as follows: "When the above orders and notes are delivered to the committee, the same to be received in full payment and satisfaction of the claims and indebtedness of the county against me, and to entitle me and my sureties to a release."
The answer further alleges that the board of supervisors of Oconto county then consisted of ten members, and that, at a meeting of the board which was attended by but seven of the members, action was taken upon the above proposition, and by a vote of five to two the board adopted the following resolution:
"Resolved, That the proposition in writing this day made by Richard L. Hall to this board, for the settlement of his liabilities and debts to the county of Oconto, be and the same is hereby accepted and ordered spread upon the records and that when he shall comply with his said proposition, he shall from that time be fully released from all liabilities to the county of Oconto; and W. A. Ellis, H. M. Royce and W W. De Lano are hereby appointed a committee to carry said proposition and this resolution into effect; and they, or a majority of them, are hereby empowered, in the place of this board, to release him, and to execute and deliver in the name and on behalf of Oconto county all requisite and proper instruments in writing in the premises."
The answer then alleges as follows: "That, incompliance with the proposition submitted in the foregoing petition by said Richard L. Hall, and in pursuance of the resolution aforesaid accepting said proposition, and in consideration that a compliance with said proposition by said Richard L. Hall would entitle him as treasurer, and his sureties as such, to a full and complete discharge from all indebtedness to said county on account of the defalcation aforesaid, and to a full release from all liabilities on account thereof, and not otherwise, the said Richard L. Hall entered upon the performance of said proposition and resolution; that, as a part of the performance of said proposition, and as a compliance therewith, and in the full faith that a compliance therewith on the part of said Richard L. Hall would ensure to said Hall and to his sureties perpetual release and discharge from all liabilities on account of the defalcation aforesaid, as in said petition claimed and demanded, and as a part of the consideration for said discharge, said Richard L. Hall executed the notes, and the defendant Ben. R. Hall executed the mortgage, as in the amended complaint alleged; that said notes and mortgage were approved by the committee in said resolution named as a part of the payment in said proposition offered; that the said Richard L. Hall did fully comply with the terms of said proposition and resolution, and the giving of the said mortgage by the defendant Ben. R. Hall was a part of the compliance therewith."
It is further alleged in the answer, that two of the members of the board of supervisors who were present and voted on the above resolution--William Ellis, who voted for its adoption, and William Brunquest, who voted against it,--were sureties in certain official bonds of Richard L. Hall as such treasurer; Ellis in the treasurer's drainage-fund bond of 1870, and Brunquest in the corresponding bonds of 1867 and 1869; during which years defalcations of the treasurer occurred in respect to those funds.
The plaintiff demurred to the answer of the defendant Ben. R. Hall on the ground that it failed to state a defense to the action, and appealed from an order overruling the demurrer.
Order affirmed.
W. H. Webster, for the appellant.
For the respondent, there was a brief by Fairchild & Fairchild, and oral argument by H. O. Fairchild.
When the cause was here on the former appeal, we thought the complaint alleged, in substance, that the mortgage of the defendant Ben. R. Hall was voluntarily given as additional security, pro tanto, for the defalcation of the defendant Richard L. Hall as county treasurer; and it was held competent for the board of supervisors to take such additional security. It was also held that the complaint contains no sufficient averments to raise the questions of the power of that board to compromise with the defaulting treasurer, and its power to release, in whole or in part, the right of action on his official...
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