Grayson v. Linton

• Decision Date: 24 April 1942
• Docket Number: 6991
• Citation: 125 P.2d 318,63 Idaho 695
• Parties: EDWARD LYNN GRAYSON, a minor, by LAVAUGHN M. GRAYSON, his guardian, Respondent, v. JOSEPH LINTON, ROBERT S. CALLIS, BANNOCK COUNTY, A political subdivision of the State of Idaho, Respondents, THE METROPOLITAN CASUALTY INSURANCE COMPANY OF NEW YORK, a corporation, Appellant
• Court: Idaho Supreme Court

125 P.2d 318

63 Idaho 695

EDWARD LYNN GRAYSON, a minor, by LAVAUGHN M. GRAYSON, his guardian, Respondent, v. JOSEPH LINTON, ROBERT S. CALLIS, BANNOCK COUNTY, A political subdivision of the State of Idaho, Respondents, THE METROPOLITAN CASUALTY INSURANCE COMPANY OF NEW YORK, a corporation, Appellant

No. 6991

Supreme Court of Idaho

April 24, 1942

PROBATE COURT-GUARDIAN AND WARD-JUDGES-LIABILITY OF SURETY.

1. The rule that a surety is bound for the acts of an officer whether he was acting by virtue of his office or under color of office applies to judicial officers.

2. Purchaser of ward's land from guardian was entitled to protection of probate court in the payment of the purchase price until he received a title which he was willing to purchase.

3. Where from the statutes probate judge could have considered that he had power and that it was his duty to protect ward and purchaser of ward's land when guardian was in default in payment of premiums on his bond and it was necessary to quiet title to such land before sale could be completed probate judge's order that purchase money be paid to probate judge pending outcome of quiet title action was under "color of office," and surety on probate judge's official bond was liable upon probate judge's embezzlement of such funds. (I. C. A secs. 1-1202, 6-701, 15-1509, 15-1829, 15-1830; Secs 15-1831, 15-1837, as amended by Sess. L., 1935, c. 100, secs 1, 3.)

4. The probate court is the original court of exclusive jurisdiction over guardianship matters and must protect the minors under its care. (I. C. A. sec. 1-1202.)

APPEAL from the District Court of the Fifth Judicial District, in and for the County of Bannock. Honorable Isaac McDougall, Judge.

Action on probate judge's official bond. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent Grayson against Metropolitan Casualty Insurance Company.

Jones, Pomeroy & Jones, for Appellant.

Sureties on official bonds are not liable for moneys not legally received by officers as part of the duties of the office. ( Power County v. Fidelity and Doposit Company, 44 Idaho 609; 260 P. 152; State ex rel Weltmer v. Moore, (Kans.) 20 P.2d 518; Pitman v. State, (Okla.) 158 P. 1137.)

Surety on official bond of probate judge, conditioned for the performance of all duties required by law, is not liable for sums received by probate judge from guardian during the term of office, in absence of law permitting or authorizing such receipt. (In re: Wells, (S. C.) 177 S.E. 665: American Bonding and Trust Co. v. Blount, 65 S.W. 806; Power County v. Fidelity and Deposit Company, 44 Idaho 609; 260 P. 152.)

Black & Black, for Respondent, Edward Lynn Grayson; Finis Bentley, for Respondent, Joseph Linton; Clarence M. Jeffery, for Respondent, Bannock County.

All of the transactions were had with Judge Callis in his courtroom and office in the courthouse, and were connected with and concerning the guardian's sale of a ward's property, and were in line of his official acts and duties, and while he was acting as Probate Judge and would not have been transacted with him had he not been Probate Judge, and were acts done in an official capacity and his surety bond is liable for his defalcations, whether the acts themselves were done colore officii or virtute officii. (Helgeson v. Powell, 54 Idaho 667, 34 P.2d 957; Coles v. McNamara (Wash.) 230 P. 430; 24 R. C. L. 965, Sec. 59; Abbott v. Cooper (Cal.) 23 P.2d 1027; Clancy v. Kenworth (Iowa) 35 N.W. 427, 428.)

GIVENS, C.J. Budge, Morgan, and Ailshie, JJ., concur. Holden, J., dissents.

OPINION

GIVENS, C.J.

Respondent LaVaughn M. Grayson is the duly appointed guardian of the estate of his minor brother Edward Lynn Grayson, whose sole estate at the time of the controversy herein apparently consisted of the Southwest Quarter of the Northeast Quarter and the Northwest Quarter of the Southeast Quarter, Section 32, Township 6 South, Range 36 East Boise Meridian, 80 acres in Buckskin Basin, Bannock County. Evidently but little revenue was derived from this land, and the property was sold to the county for taxes April 1, 1936. Robert S. Callis, one of the original defendants herein, who defaulted, with consequent judgment entered against him and no appeal therefrom, was the duly appointed probate judge of Bannock County during all of the time involved herein.

There is evidence to the effect and the court found that during 1940 the probate judge advised the guardian to sell the property in order that the accumulated taxes might be paid and something saved therefrom for the benefit of the ward, whereupon the guardian secured respondent Linton as purchaser, who bid $ 800, the appraised price, and deposited with the probate court, as required by him, ten per cent of the bid January 24, 1940. February 10, 1940, the probate judge wrote the General Casualty Company of America, which had written the guardian's bond and upon which premiums were in default, in response to their query with reference to such delinquency, as follows:

"Your letter February 8th.

"You are advised that the property in this guardianship matter is now being offered for sale and will be confirmed shortly.

paid directly into the Court and will not be handled by

"However, this Court will require that all monies be the guardian. I note there are premiums due on this bond, and this matter will be taken care of as soon as the property is sold."

Linton and his wife testified the probate judge told them he would require the purchase money, i.e., balance of $ 720, to be paid into court, which was done February 24, 1940. The title to the land was then questioned by Linton's attorney, whereupon a quiet title suit was instituted by the guardian and brought to a successful conclusion July 17, 1940, when demand was made by the attorney for the guardian upon the probate judge for the money, whereupon it was disclosed the same had been embezzled by the probate judge.

The present action ensued, being one for a declaratory judgment against the probate judge, the purchaser Linton, and the appellant casualty insurance company which had written the official bond covering the probate judge. The trial court absolved the purchaser from liability because he had paid the purchase money to the probate judge, awarded nothing against Bannock County, and entered judgment against the probate judge and his surety. The appeal is by the surety company on the ground the money was received by the probate judge neither under color or by virtue of his office, and consequently there is no liability, urging that there was no statute which either required or authorized the payment to, or receipt by, the probate judge of this money and that the same should have been paid to the guardian. The evidence discloses that the guardian acted under advice of counsel in acquiescing in the payment by the purchaser of the purchase price to the probate court. While respondent attempts to make some point of the wording of the bond as being broader or more binding than what he contends is the ordinary official bond, we do not base our decision thereon.

Finding number 9, supported by the evidence, is pertinent:

"That the said property of said minor so sold was heavily burdened with taxes and said minor was about to lose said property; that the guardian had not paid the premium on the guardian's official bond, and Judge Callis had called said guardian in and advised him to find a buyer for said property to save it for said ward; that the said Probate Judge informed the guardian and the defendant Linton and also the surety company which wrote the guardian's bond that he, as probate judge would require all money received from the proceeds of the sale of said real estate to be paid to him as Probate Judge, and that he would see that the proceeds were properly disbursed."

There has been perhaps lack of complete uniformity of expression by this court with regard to the scope of liability of bonds of public officers dependent upon whether the acts of the officer were done by color or virtue of office, but it is unnecessary to go further back than Helgeson v. Powell, 54 Idaho 667, 34 P.2d 957, where this court expressly and definitely held that "it is immaterial whether the officer was acting by virtue of his office or under color of office, the surety is bound for his acts." It is contended, however, that this case overlooked and failed to take into consideration Power County v. Fidelity & Deposit Co., 44 Idaho 609 260 P. 152, and that a different rule should prevail as between peace officers and ministerial or judicial officers. The pertinent rule in the Helgeson case is not in conflict with the statement in the Power County case, because the court there said: "Of course, any county officer, like any other person, is liable to the county for moneys received for the use and benefit of the county, but this liability is a private and personal liability, unless the money has been received by virtue of his office, or at least in a proper case under color of his office. The appellant did not contract to become liable for defalcations by French of moneys received by him in a personal or private capacity, or as a mere volunteer, as in this case." (emphasis ours) Thus the Power County case recognized liability under color of office under certain circumstances. No logical distinction between the classes of officers can be made or is supported by any authority.

It is only necessary therefore herein to determine whether or not the probate judge in requiring the payment to, and receipt by, him of the purchase price was acting under color of office. At the time the initial ten per...