Kerr v. Brandon

• Decision Date: 31 January 1881
• Citation: 84 N.C. 128
• Court: North Carolina Supreme Court
• Parties: JOHN H. KERR, Receiver v. H. F. BRANDON and others.

84 N.C. 128

JOHN H. KERR, Receiver

v.H. F. BRANDON and others.

Supreme Court of North Carolina.

January Term, 1881.

CIVIL ACTION on an official bond tried at Fall Term, 1880, of CASWELL Superior Court, before Eure, J.

The plaintiff appealed from the judgment below.

Messrs. A. E. Henderson and Graham & Graham, for plaintiff :

The fund received by defendant by virtue of his office; and his sureties are liable. Broughton v. Haywood, Phil., 380. Cases cited in opinion of court discussed. Clerk must account for all moneys received, &c. Havens v. Latham, 75 N. C., 505; State v. Gaines, 8 Ired., 168. This case distinguishable from Gregory v. Morisey, 79 N. C., 559. See also 1 Dev. & Bat. 414; Becton v. Becton, 3 Jones Eq., 419; State v. McAlpine, 4 Ired., 140. Record cannot be explained by parol. Harrell v. Peebles, 79 N. C. 26.

Mr. Thos. Ruffin, for defendants .

SMITH, C. J.

In an action instituted by the solicitor of the judicial district of which Caswell county forms a part, pursuant to sections 21 and 22, of chapter 53, Bat. Rev., for securing the estate of certain infants in the hands of their removed guardian, Martha J. Womack, the order following was made at Fall Term, 1870:

“On motion, it is ordered by the court that Henry F. Brandon be appointed a receiver to take into his possession the estate of Sarah B. Russell, Ann E. Russell and Willie Russell, and manage the same to the best interest of the said minors; to lend their money upon good security, and that he rent out the lands to the best advantage for the minors; to collect the rents and lend the same upon good security.”

The appointee, who was then clerk of the court, continued to be such until the end of his term of office in September, 1874, when he surrendered all the papers and effects belonging to the office to his successor, retaining however the estate of the infants in his hands and acting thereafter, as before, under his appointment as receiver. At spring term, 1875, the defendant, Brandon, rendered his account of the administration of the estate, with the vouchers and effects thereof, and tendered his resignation, when the court suggested the name of another person in his place, who refused the appointment, and no further action was then had. At this time the defendant had faithfully managed the funds--making regular annual returns--and had wasted and misapplied no part of it.

At fall term, 1878, the following order was entered:

“This cause coming on to be heard, and it being made known to the court that the estates of the following named infants (naming them) are in the hands of Henry F. Brandon, as receiver, who has given no bond or other security for the protection of the same, it is therefore, on motion of F. N. Strudwick, solicitor, acting on this behalf, ordered that the said Brandon give a bond with good and sufficient sureties, in double the amount of the value of the estates in his hands, and justify the same before the clerk of this court, within thirty days from the last day of this term; or, in case he fail to do so, then that he file with the clerk a sworn statement of his account as receiver of said estates, and that he pay all that may be in his hands for said infants, without further delay, to the clerk of this court, who is appointed receiver of the estates of said infants.”

The defendant, Brandon, failing to comply with the order the present action is instituted against him and the other defendants, sureties to his official bond, given for securing the faithful discharge of his duties as clerk, to charge them with the trust fund wasted and misapplied while in his hands as receiver; and the only question presented in the record for us to solve is, whether the defendants are responsible in damages for his default.

To repel the allegation that the receivership was conferred upon the said Brandon in his official capacity as clerk, and to show that the appointment was entirely personal, the defendants were permitted, after objection, to prove by witnesses that at the time when the order appointing a receiver was entered, it was distinctly understood and admitted by the solicitor and the special counsel appearing and acting for the infants, in open court, before the presiding judge, that the appointment was, in legal effect and so intended to be, individual and imposing no obligation on the sureties to the official bond, and that until this assurance was given Brandon declared his unwillingness to bind his sureties for this new duty, and sooner than do so, he would resign his office; and that it was then made known that a...