Holt Cnty. v. Harmon

• Decision Date: 28 February 1875
• Citation: 59 Mo. 165
• Parties: HOLT COUNTY, Defendant in Error, v. CHARLES HARMON, et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

59 Mo. 165

HOLT COUNTY, Defendant in Error,

v.CHARLES HARMON, et al., Plaintiffs in Error.

Supreme Court of Missouri.

February Term, 1875.

Error to Holt Circuit Court.

T. H. Parrish & B. Pike, for Plaintiffs in Error.

I. The County Court of Holt County, in the collection of the bond sued on, being the agent of the county, all the acts of such agent within the scope of its authority, express or implied, are binding on the county, and the purchase of the mortgaged lands by the county attorney, expressly authorized for that purpose, was binding on the county and court. (33 Mo., 361; 29 Mo., 71; 28 Mo., 589.)

II. Holt County, by law, is authorized in some cases and for some purposes to take and hold the title to real estate and is a quasi corporation. And it is a well settled doctrine, that where a corporation, or quasi corporation, is authorized to acquire and hold title to real estate for some purposes, it cannot be made a question by any party, except the State, whether or not real estate acquired by such corporation has been acquired for the authorized uses or not. (Hayward vs. Davidson, 41 Ind., 212, 213; Chambers vs. City of St. Louis, 29 Mo., 543.)

James Limbird, for Defendant in Error.

I. County Courts can exercise no powers except such as are expressly or impliedly delegated to them by the legislature of the State, and the statute nowhere authorizes the County Court to bid on any real estate or become its purchaser at any sale under a mortgage to secure a loan; and such bid is void. (49 Mo., 236.)

II. The County Court in the management of the “internal improvement” funds are governed by the statute law governing the management of the school fund. (Wagn. Stat., §§ 18, 19, 20, p. 870; §§ 78, 81, 83, 87, 89, pp. 1258-59; 44 Mo., 79; 15 Mo., 604; 7 Mo., 194.)VORIES, Judge, delivered the opinion of the court.

This action was brought to recover an amount charged to be due on a bond for seven hundred dollars with interest executed by the defendants, Charles Harmon and Peter Bender as principals, and John C. Bender, William A. Harmon and Nimrod “J. Kyger as sureties” to Holt County, for the benefit of the internal improvement fund in said county.

The petition was in the usual form, and the bond in the form usually used by the county when loaning portions of the school funds belonging to the county. The bond sued on was also secured by a mortgage executed by the principals therein, by which they conveyed a tract of land to the county to secure said bond, the mortgage being in the form of mortgages taken to secure school township money.

It appears from the record, that the only defendants served with process, or who appeared to the action, were Nimrod Kyger and John C. Bender. These two defendants, who were served, appeared in the Holt Circuit Court and filed their answer to the plaintiff's petition, in which they admitted the execution of the bond sued on, but denied that they were then indebted thereby.

The said defendants, as a defense to said action, charged that the note or bond sued on was executed to Holt County for the use and benefit of the ““internal improvement” fund of said county, by said Charles Harmon and Peter Bender as principals, and the said defendants as their sureties; that at the time of the execution of said bond, Charles Harmon and Peter Bender, in order to secure the payment of said bond, executed to said county their deed with power of sale, wherein the sheriff of Holt County was made the trustee, conveying for the security of said bond a tract of land therein named, which was fully sufficient to secure the amount due by said bond, and which land is still worth the full amount thereof; that afterwards, on the 7th day of March, 1872, the County Court of Holt County, by their order in writing, directed the sheriff of Holt County to sell said real estate for the purpose of paying said debt; that said sheriff in pursuance of said order did advertise said land for sale on the 15th day of April, 1872, at the court house door in said county as the law and said deed directed; and that on said day said sheriff did, pursuant to said advertisement, sell said land at the said court house door to the highest bidder for cash; that said defendants as sureties in said bond as aforesaid, attended said sale for the purpose of making said land bring a sufficient sum to pay the whole amount due on said bond and for said purpose they did bid upon said land; that one T. C. Dungan, who was the acting county attorney for said county, by the direction of the County Court, did bid for said county the full amount of said bond, interest and costs, and being the highest bidder, the said land was struck off and sold to said county for a sum sufficient to discharge the whole amount due by said bond as aforesaid; that afterwards, on the 10th day of May, 1872, the said County Court, with the intent to cheat said defendants, induced said sheriff, who was trustee as aforesaid, to return said land not sold, for want of bidders, which return was so fraudulently made by said sheriff; that on said 10th day of May, 1872, said County Court made another and second order in writing, directing said sheriff to again sell said land for the said purpose, as alleged, of paying off and discharging the amount due by said bond; that in pursuance of said last named order, said sheriff did, on the 19th day of August, 1872, at the court house door, again sell said land to the highest bidder for cash in hand, and that one Collins became the purchaser at, and for the sum of $382; that out of said sum, the sheriff first paid all costs incurred in said sales; and the balance being $270, was credited on said bond.

It is then insisted by the answer, that by reason of the purchase of said land by said county at the first sale thereof, for an amount sufficient to discharge the amount due by said bond, said defendants paid no further attention to the matter and knew nothing of the second sale by the sheriff until long after said sale; that by reason of all such acts on the part of the county and its agents, defendants insist that they are fully discharged from further liability on said bond sued on, wherefore they pray judgment, etc.

To this answer the plaintiff demurred, on the grounds that the answer did not state facts constituting any defense to the action, and on the ground that the county had no authority or capacity to purchase said land at the first sale thereof; that said attempted purchase being a mere nullity could not have the effect to release defendants; and several other argumentative grounds of demurrer were stated, which need not be here repeated.

The court afterwards upon a hearing...