Municipality of Cowen ex rel. Proudfoot v. Greathouse
| Decision Date | 28 October 1947 |
| Docket Number | C. C. No. 725. |
| Citation | 45 S.E.2d 489,130 W.Va. 587 |
| Parties | MUNICIPALITY OF COWEN ex rel. PROUDFOOT v. GREATHOUSE et al. |
| Court | West Virginia Supreme Court |
Certified from Circuit Court, Webster County.
Syllabus by the Court.
1. At common law, a written instrument, to be a bond, must bear a seal; and, in the absence of a statute which dispenses with the necessity of a seal, a writing, in form a bond except the absence of a seal, is not a bond within the legal and technical meaning of that term.
2. The principal and his sureties who sign an unsealed written instrument, executed and delivered by them to enable him to obtain an office to which he has been appointed, and by virtue of which he performs the duties and receives and enjoys the benefits of such office, may, by such conduct, be estopped to deny the validity of such instrument in an action against them for breach of its condition.
3. A written instrument, executed and delivered by an appointee to a municipal office and his sureties as a statutory bond regular and sufficient in form except the omission of the seal of the signers, may be valid and enforceable as a common law obligation if it is entered into voluntarily for a valuable consideration and does not violate any principle of public policy or any statute of this State.
Wysong & Wysong, of Webster Springs, for plaintiff.
Hoover & Hoover, of Webster Springs, for defendants.
Upon this certificate the question of the legal sufficiency of the declaration is involved. The Circuit Court of Webster County, West Virginia, in which this action was instituted, sustained the demurrer of the defendants to the declaration of the plaintiff, the Town of Cowen, a municipal corporation in that county, which sues at the relation of R. N. Proudfoot, and, on joint motion of the parties, certified its ruling to this Court.
The action is to recover the stated penalty of $3,500.00 in a written instrument, alleged to be a bond, executed by the defendant Ed Greathouse, chief of police of the Town of Cowen, a municipal corporation, in Webster County, as principal, and the defendants, Ralph Cunningham and A. H. Phares, as sureties, as damages for personel injuries resulting from an assault and battery which the declaration charges the defendant Greathouse, as such police officer, while armed with a dangerous and deadly weapon, made upon the relator, Proudfoot, on October 7, 1944. The writing, dated November 10, 1943, is conditioned upon the faithful discharge by Greathouse of the duties of his office of chief of police of the Town of Cowen, and his accounting for and paying over, as required by law, all money which may come into his hands to the person entitled to receive it. It is signed by each of the three defendants and contains the statement that it is sealed with their seals. Actually, however, no seal appears after the name of any of the signers or elsewhere upon the document. Notwithstanding the absence of a seal, the writing, which was executed and filed by Greathouse as his bond when he qualified under his appointment as chief of police of the Town of Cowen, was approved by the mayor of that municipality on November 10, 1943, the day the writing is dated. From the allegations of the declaration, it is evident that Greathouse has held and performed the duties of his office of chief of police by virtue of his appointment and qualification upon the execution of the foregoing instrument from the time he was appointed to that office on November 10, 1943, until the commission of the alleged assault and battery on October 7, 1944, and subsequently until the institution of this action.
The sole ground upon which the trial court sustained the demurrer of the defendants to the declaration was that the instrument sued on, not being under seal, was not the bond of the defendants and for that reason this action could not be maintained.
The legal questions presented are: (1) Whether the paper writing, in all respects regular in form except the absence of a seal after the signatures of the obligors, is a bond; (2) whether the defendants, by reason of the qualification and the performance by the defendant Greathouse of the duties of his office of chief of police by virtue of the execution and delivery by the defendants and the approval by the mayor of the municipality, of the foregoing instrument as an official bond, are estopped to deny its binding effect as such notwithstanding the absence of a seal; and (3) whether the written instrument, though lacking any seal, is valid and binding upon the principal and the sureties, as a common law obligation.
Appellate courts in numerous jurisdictions have held that a writing which lacks a seal may be enforced as a common law obligation or that the absence of a seal, when the form of the instrument is in all other respects regular, is not a defect which destroys its validity. 11 C.J.S., Bonds, § 16b. As a general rule, however, in the absence of a statute which dispenses with it, a seal is essential to the existence of a bond and a writing which is devoid of the seal of the parties who sign it does not possess the qualities which attach to a bond. 11 C.J.S., Bonds, § 16b.
This Court has defined a bond as 'an obligation under seal'. State ex. rel. Griffith v. Purcell, 31 W.Va. 44, 5 S.E. 301, 305. The opinion in that case also states that a bond may be either single or conditional; that it is single when the obligor binds himself, his heirs, administrator or executor, to pay a fixed sum of money on a certain day; that it is conditional when he obliges himself, his heirs, administrator or executor, to pay a certain sum of money upon condition that if he does some particular act the obligation shall be void; that a common law bond, whether single or conditional, is a bond which is voluntarily executed in the absence of any statutory authority requiring it to be executed and prescribing its penalty or its condition; and that a statutory bond is a bond which is required by statute from state, county, disrict or municipal officers, from fiduciaries, from parties in judicial proceedings, or from officers and agents of private corporations pursuant to authority conferred upon them by charter or by general law. In the recent Virginia case of Covington Virginian v. Woods, 182 Va. 538, 29 S.E.2d 406, the Supreme Court of Appeals of that State makes the statement that a bond is a written obligation under seal and that the seal is the distinguishing characteristic which imports solemnity and binding value. In United States v. Linn, 15 Pet. 290, 10 L.Ed. 742, the Supreme Court of the United States held that an instrument without seal is not a bond within the Act of Congress under consideration in that case. Here the form of the condition expressed in the instrument is substantially that prescribed by statute, Section 11, Article 2, Chapter 6, Code 1931.
At common law the distinguishing characteristic of a bond is the presence of a seal which served to import greater solemnity than that which was accorded to an ordinary written contract. No statute of this State has dispensed with the necessity of a seal with respect to a bond, and none provides that a written instrument from which a seal is missing may be given the force or the effect of a bond. Likewise no case in this jurisdiction, cited or otherwise brought to the attention of this Court, has departed from or modified the definition of a bond as stated in the Purcell case, or altered or rejected the general rule which recognizes the presence of a seal as an essential characteristic of a bond. A recital in a written instrument that it is sealed with the seals of the signers does not, in the absence of a seal or an equivalent mark, operate to make the writing a sealed instrument. 11 C.J.S., Bonds, § 16b; Comley v. Ford, 65 W.Va. 429, 64 S.E. 447.
Two statutes of this State deal with the subject of seals. One of these enactments, Section 6, Article 2, Chapter 2, Code 1931, in part provides that when the seal of a natural person is required to a paper, he may affix a scroll by way of seal, or adopt as his seal any scroll made upon such paper by another. When a scroll is affixed to a written instrument and is placed opposite the signature of one of two signers and the writing concludes with the words: 'Witness the following signatures and seals' it operates as a seal for the signatures of both parties to the instrument. Norvell v. Walker, 9 W.Va. 447. See also State v. Doddridge County Bank, 116 W.Va. 683, 182 S.E. 884. The other statute, in Sections 1 and 3, Article 3, Chapter 36, Code 1931, provides that the presence of a seal or a symbol or a word intended to have the effect of a seal, shall not be necessary to give validity to any deed, deed of trust, mortgage or other conveyance of any estate in land and that a seal or other such symbol or word affixed to any instrument conveying or agreeing to convey land or any interest in land shall not give to such instrument any additional force or effect, by way of importing a consideration or in any other manner whatsoever, either at law or in equity, than such instrument would have if it was unsealed. As a seal is entirely missing from the document here in suit, and as it does not purport to convey land or any interest in land, neither the statutes nor the cases mentioned in this paragraph apply to the facts disclosed by the declaration now under consideration.
That the presence of a seal is essential to accord to a writing the character of a sealed instrument was decided by this Court in the case of Comley v. Ford, 65 W.Va. 429 64 S.E. 447, in 1909, before the enactment of Section 1, Article 3, Chapter 36, Code...
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