Mason v. Cook

• Decision Date: 16 December 1919
• Citation: 218 S.W. 740,187 Ky. 260
• Parties: MASON ET AL. v. COOK ET AL.
• Court: Kentucky Court of Appeals

218 S.W. 740

187 Ky. 260

MASON ET AL. v. COOK ET AL.

Court of Appeals of Kentucky.

December 16, 1919

Rehearing Denied March 16, 1920.

Appeal from Circuit Court, Graves County.

Action by W. S. Cook and others against L. F. Mason, W. L. Brand individually and as executor of J. C. Brand, J. A. Hamilton and others. From a judgment for plaintiffs, defendants appeal. Reversed on appeal of W. L. Brand, executor, in part and affirmed in part, and reversed on appeals of J. Hamilton and another.

R. O. Hester and Aubrey Hester, both of Mayfield, for appellants Brand and Dodson.

J. E. Warren and B. C. Seay, both of Mayfield, for appellants Harris, G. R. Allen, V. E. Allen, Graves County Banking & Trust Co., S. T. Hamilton, and J. A. Hamilton.

Aubrey Hester, of Mayfield, for appellant Leonard.

Robbins & Robbins and W. J. Webb, all of Mayfield, for appellees Stunston and Usher.

HURT J.

The appellant W. L. Brand was elected sheriff of Graves county for the term embracing the years 1906, 1907, 1908, and 1909, and duly qualified as such by executing the bonds for each of the years of his term which are required by law, and in each of these bonds the appellant G. R. Allen and the appellees, W. S. Cook, W. A. Usher, and J. L. Stunston, became his sureties. The bonds and sureties thereupon were duly accepted by appropriate orders of the county court. For each of the years a commissioner was appointed by the fiscal court to make a settlement with Brand of his accounts as sheriff touching the collection of the taxes which were levied for each of the years in Graves county for county purposes, including the taxes levied for the benefit of the common schools of the county. The settlements were made, and whatever sums, if any, the sheriff appeared from the settlements to be owing were paid by him to the authority or party entitled thereto, and after the settlements were made and approved the fiscal court for each of the years granted to the sheriff a quietus as provided by section 4130, Ky. Stats.

In the early part of the year 1911 the officers of the county for some reason suspected that the settlements made by the commissioner with Brand of his collection and disbursements of the money received by him by virtue of his office of sheriff and due to the county were incorrect, and that he had failed to perform his duties according to the tenor of his bonds, and thereupon an investigation of his official conduct was undertaken, and accountants were employed for that purpose, and as a result of the investigation the officials of the county, as alleged, learned for the first time on the 7th day of September, 1911, that in the settlement for each of the years there was a failure to charge Brand with large sums of moneys which he had received as sheriff, and which were due the county, and the collection of which he had fraudulently concealed, and that in each of the settlements he had been credited by various sums of money erroneously, and by which he was not entitled to credit, and that by reason of these various errors and concealments there yet remained in his hands unaccounted for and not paid to the county a sum of money in the aggregate sum of near $20,000. Commissioners were appointed by the fiscal court to demand of Brand and to receive from him the sums claimed to be wrongfully held by him, but upon demand he failed to pay the sums claimed, or any part of them. Actions were thereupon instituted by the county against Brand and his sureties upon the bonds which had been executed by them to surcharge the settlements made by the sheriff upon the grounds of fraud and mistake, and to recover the sums claimed to be due from him to the county. A suit was instituted for the money alleged to be due from him for each of the years of his term as sheriff. The board of education instituted a similar action to recover a sum which it was claimed was due it from Brand for taxes collected by him which had been levied for its benefit. Brand and his sureties filed a joint answer to the petition in each of the five actions, employing for that purpose the same attorney. The answers consisted of denial of the averments of the petitions. After the actions had continued until in March, 1914, and the county had taken a great deal of evidence, the cost of which, it is claimed, amounted to the sum of $3,000, but no evidence having been taken by Brand or his sureties, the actions were submitted on the 5th day of March, 1914, and judgments rendered in favor of the county against Brand and his sureties in the bonds for the following sums: For the year 1906, $4,168.53; for the year 1907, $2,882.97; for the year 1908, $2,575.05; and for the year 1909, $2,136.15--and in favor of the board of education against Brand and his sureties in the suit it was maintaining the sum of $2,215.35, making in the aggregate the sum of $13,978.05. No accrued interest upon the sums was adjudged, which at that time must have amounted to several thousand dollars, and the county and board of education were by agreement of the parties, as appears from the record, adjudged to pay all the costs which had been incurred in the actions.

Thereafter, on the 16th day of March, certain of the sureties on the bonds of Brand, and against whom the judgments had been rendered, filed an action against him to require him to indemnify them against the payment of one of the judgments, and, as incident to it, secured a general order of attachment to issue against his property, which was levied upon certain articles of personal property, and on June 1st thereafter Brand filed an answer, by which he claimed that he was a housekeeper with a family, and entitled to certain articles of the personal property levied upon as property exempt from coercive process for the collection of his debts upon that ground, but did not question in any way the validity of the judgment.

On June 15, 1914, Brand, as executor of J. C. Brand, filed his petition to be made a party to the same action, claiming the remainder of the personalty levied upon as the property of the estate of J. C. Brand, but yet failed to complain of or question the validity of the judgments against him.

On June 1, 1914, the appellees, Cook, Stunston, and Usher, who were three of the sureties against whom the judgments had been recovered, together with the appellant G. R. Allen, who was another surety, satisfied the judgments against them and Brand, and after a return of nulla bona Cook, Stunston, and Usher, Allen refusing to join with them, brought an action against W. L. Brand, W. L. Brand as the executor of J. C. Brand, L. F. Mason, W. L. Harris, Carrie Leonard, J. A. Hamilton, Omar Dodson, S. T. Hamilton, and Graves County Banking & Trust Company and others, who are not parties to this appeal, and averred that they and their cosurety, G. R. Allen, having been required to satisfy the five judgments rendered against them and Brand, were entitled to be subrogated to the liens and the rights of action which they averred that the county and board of education had against the property of W. L. Brand, and also upon the real property owned by him after his induction into the office of sheriff to secure the payment of the judgments, and prayed that such property be subjected to the liens and applied to their reimbursement.

The appellant G. R. Allen, having refused to join in this action, was made a defendant, because of his ownership of a tract of land which had been the property of Brand.

W. L. Brand on the 1st day of January, 1912, had conveyed to J. C. Brand a tract of 60 acres of land, which the latter mortgaged to the Graves County Banking & Trust Company to secure a debt of $1,700, and, having died, the Banking & Trust Company brought an action to enforce its lien upon the land and for a settlement of the decedent's estate, in which W. L. Brand, as executor of J. C. Brand, and the heirs and creditors of the decedent, were made parties.

W. L. Brand, with G. R. Allen as his surety, owed a promissory note to J. L. Stunston, and to secure its payment Brand had executed a mortgage upon an 80-acre tract of land which he owned to Stunston, and on November 1, 1914, Stunston instituted an action against Brand and G. R. Allen to recover a judgment for the amount of the note, and for an enforcement of the mortgage lien, but alleged that the mortgage lien was inferior to the lien held upon the land by himself, Cook, Usher, and Allen as sureties in the bonds of Brand as sheriff. In this action G. R. Allen filed an answer, in which he alleged certain grounds as an estoppel to the claim of the other sureties in Brand's bonds, to having a lien upon the land, and also pleaded certain representations of Stunston as amounting to a release or waiver of his right to hold him as a surety upon the note. These grounds of defense were all denied by reply, and no evidence was ever taken to support them.

W. L. Brand owned a 160-acre tract of land, which he had conveyed to V. E. Allen, and who, in turn, had conveyed same to G. R. Allen, and when the appellees sought to enforce the lien claimed by them upon this tract of land, V. E. Allen became a party to the action by petition, which was made his answer, and a counterclaim and cross-petition against the appellees and certain other persons, among whom was the Graves County Banking & Trust Company.

The actions above named, together with certain others, which need not be referred to, were consolidated, heard, and tried together under the style of W. S. Cook et al. v. W. L. Brand et al., and the judgment rendered in these consolidated actions is the one from which the appeal which we are now considering was taken.

The appellants L. F. Mason, W. L. Harris, Carrie Leonard, J. A Hamilton, Omar Dodson, and S. G....