Holt v. Rea

• Decision Date: 03 September 1932
• Docket Number: No. 31002.,31002.
• Citation: 52 S.W.2d 877
• Parties: N.J. HOLT, E.L. BELKNAP, W.A. OWENSBY, JOHN I. MADDUX, C.W. SMITHPETER, J.C. BUTLER and JAMES A. BONNER, Appellants, v. HARRY REA, O'BANNON BANKING Co., a Corporation, and W.C. HAWKINS.
• Court: Missouri Supreme Court

52 S.W.2d 877

N.J. HOLT, E.L. BELKNAP, W.A. OWENSBY, JOHN I. MADDUX, C.W. SMITHPETER, J.C. BUTLER and JAMES A. BONNER, Appellants, v. HARRY REA, O'BANNON BANKING Co., a Corporation, and W.C. HAWKINS.

No. 31002.

Supreme Court of Missouri, Division 1.

September 3, 1932.

Appeal from Dallas Circuit Court. — Hon. C.H. Skinker, Judge.

AFFIRMED.

John S. Haymes for appellant.

(1) County courts "Are not the general agents of the county or of the State, and only have such authority as is expressly granted by statute; beyond the limits of such grant their acts are void." Butler v. Sullivan Co., 108 Mo. 637; Sturgeon v. Hampton, 88 Mo. 213; State ex rel. v. Harris, 96 Mo. 97. And all persons dealing with them are bound to take notice of their authority. Butler v. Sullivan, supra. In making settlement with collectors and other officials, such courts act as agents and in a ministerial capacity. Marion Co. v. Phillips, 45 Mo. 75; Bates Co. v. Smith, 65 Mo. 464; Scotland Co. v. Ewing, 116 Mo. 129. In the case at bar, fraud on the part of Rea is charged, shown and not questioned, in making the settlements shown in evidence, and where that is true, the courts have invariably ignored the settlements, and permitted recovery without regard thereto or any action to set the settlement aside. Marion Co. v. Phillips, 45 Mo. 75; State ex rel. v. Roberts, 60 Mo. 402; State ex rel. v. Roberts, 62 Mo. 388; Bates County v. Smith, 65 Mo. 464; Cole County v. Dallmeyer, 101 Mo. 57; Gross v. Watts, 206 Mo. 396. (2) For want of authority in the county court to remove the lien, there could be no estoppel thereby. Grafeman Dairy Co. v. Northwestern Bank, 290 Mo. 334. Neither will estoppel result against a municipality from official fraud. School District v. Correll, 186 S.W. 140.

W.D. Tatlow for respondents.

(1) (a) "All laws, written and unwritten, of whatever sorts and whatever different dates established, are to be construed together, contracting, expanding, limiting and extending one another into one system of jurisprudence as nearly harmonious and rounded as it can be made without violating unyielding written or unwritten terms." State ex rel. v. Gordon, 261 Mo. 649, 170 S.W. 897; State ex rel. v. Schuster, 285 Mo. 399, 227 S.W. 60. Where the Legislature re-enacts a statute of this State, it adopts the construction given thereto by the courts of the State before the re-enactment. Hanlin v. Morgan County, 57 Mo. 116; Eastern, etc., v. Cartwright, 84 Mo. 27; State v. Schenk, 228 Mo. 429, 142 S.W. 263; Camp v. Railroad Co., 94 Mo. App. 272, 68 S.W. 96; Schawacker v. McLaughlin, 139 Mo. 333, 40 S.W. 935. "Reincorporation without change in a subsequent revision of the statute after construction thereof by the Supreme Court is an adoption of such construction, making it a part of the statute." Ex parte Cary, 306 Mo. 287, 267 S.W. 806. "A repeal by implication occurs only when necessity demands it." White v. Greenway, 303 Mo. 691, 263 S.W. 105; State ex rel. v. Wells, 210 Mo. 620, 109 S.W. 763; Manker v. Faulhaber, 94 Mo. 440, 6 S.W. 372. The statutes must be wholly irreconcilable so that they cannot stand together in order to constitute a repeal by implication. State v. Shields, 230 Mo. 91, 130 S.W. 298; Wrightsman v. Gideon, 296 Mo. 214, 247 S.W. 135; State ex rel. v. Rutledge, 13 S.W. (2d) 1061. (b) Under these authorities and numerous others which might be cited from the reports of this State, even if the statute providing for a settlement by the collector with the county court and in express terms providing that upon the payment of the money found due that he should be granted a "full quietus under the seal of the court," was passed as a separate act in 1865 and the statute creating the bond lien was passed as a separate act in 1872, the first act was not repealed under the decisions, supra, because they can stand together and each be given a plain and unambiguous meaning. Valle's Admr. v. American Iron Mountain Co., 27 Mo. 463. As early as 1858 this court had expressly held in an exactly parallel case that a private settlement between individuals could not be opened as against the intervening rights of an innocent purchaser for value unless the fraud was brought home to such purchaser. Valle's Admr. v. American Iron Mountain Co., 27 Mo. 463. (c) There is a fundamental distinction between that which is void — in other words, a nullity — and that which is merely voidable. De Laurel v. Kemper, 9 Mo. App. 83; Kerney v. Bond, 50 Mo. 284; Bennett v. Mattingly, 110 Ind. 202; 3 Bouvier's Dictionary (3 Ed.) p. 3406.

FRANK, J.

Respondent Harry Rea was the collector of revenue for Dallas County from March, 1923, to March, 1927. He gave bond as such collector, conditioned as required by law, in the sum of one hundred one thousand three hundred ninety dollars, with appellants and respondent W.C. Hawkins as surety thereon. By statute the bond of a collector when approved and recorded is a lien against the real estate of such collector until he complies with the conditions thereof. Rea made regular settlements with the county court during his term of office. These settlements, including the final settlement, were approved by orders entered of record. His final settlement was made and he went out of office on March 1, 1927. Thereafter on May 14, 1927, respondent Banking Company loaned Rea $4,500 secured by a deed of trust on real estate which he then owned and had owned during his term of office as collector. Thereafter it was discovered that Rea's settlements were false and fraudulent in that he had not reported the collection of and paid to the county treasurer the sum of $25,089.80 which he had collected during the years 1925, 1926 and 1927. On June 13, 1928, the deed of trust which Rea had given respondent O'Bannon Banking Company was foreclosed and said Banking Company purchased the land at the foreclosure sale and received a trustee's deed therefor. On the same day the sureties on Rea's bond, having theretofore settled his shortage with the county court, brought this suit asking judgment against him for the amount they were compelled to pay the county on his shortage, and that they be subrogated to the lien given by statute on the real estate of Rea as such collector, and for all proper and equitable relief. Rea was served by publication but did not appear. The O'Bannon Banking Company answered claiming title to the land by virtue of the foreclosure of and sale under the deed of trust. No relief was asked against W.C. Hawkins. He was one of the sureties on Rea's bond but refused to join as a plaintiff in the case and for that reason was made a defendant. The decree below discharged defendants Rea and Hawkins without day and vested the title to the land in defendant, O'Bannon Banking Company. Plaintiffs appealed to the Springfield Court of Appeals and that court transferred the case here on two grounds, (1) that title to real estate was involved, and (2) that the reasonable market value of the land was $8,000.

Appellants contend that they, as sureties on the bond, having settled the collector's shortage with the county, are entitled to be subrogated to the right of the county to the statutory lien on the collector's real estate.

[1] The statute provides that the collector of revenue in the various counties of this State, before entering upon the duties of his office, shall give bond and security to the State, to the satisfaction of the county court, conditioned that he will faithfully and punctually collect and pay over all State, county and other revenue during his term of office. [Sec. 9885, R.S. 1929.] The statute also provides that, "Said bond, when approved and recorded, shall be a lien against the real estate of such collector until he shall have complied with the conditions thereof." [Sec. 9889, R.S. 1929.] The bond in question was conditioned as required by law and was approved and recorded in compliance with the statute.

[2] It is settled law that settlements made between a county collector and the county court do not have the force and effect of a judgment and are not res adjudicata. In making such settlements the county court acts as a public accountant or financial agent of the county, and settlements so made amount to no more than an accounting between principal and agent or a settlement between individuals, and may be inquired into and corrected or set aside on the ground of fraud or mistake of fact. [State ex rel. Scotland County v. Ewing, 116 Mo. 129, 136, 22 S.W. 476; State ex rel. Lawrence County v. Shipman, 125 Mo. 436, 28 S.W. 842.] The settlements not being conclusive, the collector and the sureties on his bond are liable for any shortage in his accounts resulting from fraud or mistake of fact, whether discovered before or after he makes his final settlement and goes out of office, and as between the parties, the bond remains a lien on the collector's real estate until he complies with the conditions of the bond by paying over all revenue collected by him. [3, 4] However, the question in this case is — what are the rights of a third party who without knowledge of any fraud or mistake of fact in the collector's settlements, acquires real estate from him relying upon the fact that he has made his final settlement, received his full discharge and gone out of office? Is such third party an innocent purchaser for value or does he take the land burdened with the lien of the collector's bond?

Section 9932, Revised Statutes 1929, makes the following provision:

"Every collector of the revenue having made settlement, according to law, of county revenue by him collected or received, shall pay the amount found due into the county treasury, and the treasurer shall give him duplicate receipts therefor, one of which shall be filed in the office of the clerk of the county court, who shall grant him full quietus under the seal of the court."

Prior to 1865 the statute provided that when a county collector made settlement with...