Grayson v. Linton, 6991

• Court: United States State Supreme Court of Idaho
• Writing for the Court: GIVENS, C.J.
• Citation: 125 P.2d 318,63 Idaho 695
• Docket Number: 6991
• Decision Date: 24 April 1942
• 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

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 [63 Idaho 696] 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

[63 Idaho 697] 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 [125 P.2d 319] 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 [63 Idaho 698] 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...