Smith v. Patton

• Court: North Carolina Supreme Court
• Writing for the Court: CLARK
• Citation: Smith v. Patton, 131 N.C. 396, 42 S.E. 849, 92 Am.St. Rep. 783 (N.C. 1902)
• Decision Date: 02 December 1902
• Parties: SMITH et al. v. PATTON et al.

42 S.E. 849

131 N.C. 396

SMITH et al.

v.PATTON et al.

Supreme Court of North Carolina.

Dec. 2, 1902.

cleRks of courts—bonds—funds—deposit in bank—loss—designated depository—parties.

1. Thr bond of a public officer is liable for money that comes into his hands as an insurer and not merely for the exercise of good faith.

2. Code, § 72, provides that the bond of a clerk of a superior court shall be liable for all moneys which may come into his hands "by color of his office.'' Held, that where the commissioners in partition paid the proceeds to the clerk, who receipted for it as clerk, the bond was liable.

¶ 2. See Clerks of Courts, vol. 10, Cent. Dig. § 133.

3. The charter of a hank authorized public officers to deposit in said bank any moneys in their custody, but it specified that such provision should be subject to the provisions of chapter 470, Laws 1889, which provides that no such provision in any charter shall operate to relieve officers from official responsibility, or their sureties from liability on their official bonds. Held, that where a clerk of a superior court deposited funds from a partition sale in the bank, and it failed, the bond of the clerk was liable.

4. Code, § 1883, enacts that every person injured by the neglect, etc., of any clerk of a superior court may sue on his bond. Held, that claimants of a fund arising from a partition sale, which fund had been deposited with a clerk and lost, may sue on his bond.

Appeal from superior court, Burke county; Councill, Judge.

Action on a bond by C. B. Smith, as executor, and others, against P. W. Patton and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

A. C. Avery, for appellants.

J. T. Perkins, for appellees.

CLARK. J. Under proceedings to sell land for partition, the commissioner paid the proceeds of the sale into the clerk's office, taking his receipt therefor as clerk. The clerk deposited the same in the Piedmont Bank, which later failed, and, the fund being impaired or lost, this action is to recover the amount so lost from the clerk on his bond. It is settled in this state that the bond of a public officer is liable for money that comes into his hands as an insurer, and not merely for the exercise of good faith. Presson v. Boon, 108 N. C. 78, 12 S. E. 897; State v. Bateman, 102 N. C. 52, 8 S. E. 882, 11 Am. St. Rep. 708; Morgan v. Smith, 95 N. C. 397; Havens v. Latham, 75 N. C. 505; State v. Clarke, 73 N. C. 257; and other cases therein cited. Bonds of administrators, executors, guardians, etc., only guaranty good faith. Moore v. Eure, 101 N. C. 11, 7 S. E. 471, 9 Am. St. Rep. 17; Atkinson v. Whitehead, 66 N. C. 296. But the defendants contend that there was no law authorizing the clerk to receive these funds, and therefore the bond is not liable. Here the clerk appointed the commissioner to make the sale, without bond, and on approving his report received and receipted for the proceeds as clerk, took out his costs, and entered the amount due each heir at law on his docket, and disbursed a portion of said fund to the parties entitled. This would seem a receipt of the fund by the clerk "by virtue of his office." Cox v. Blair, 76 N. C. 78; McNeill v. Morrison, 63 N. C. 508; Judges v. Deans, 9 N. C. 93. But, if this were otherwise, the clerk received it "as clerk, " and so receipted for it. This was certainly a receipt of the money "under color of his office, " and, indeed, this is admitted in the answer. The older decisions were made when these words were not in the statute. "The broad and comprehensive provision" embracing money received by "color of his office" was enacted to cover the defect by Code, § 72, and was construed in Thomas v. Connelly, 104 N. C. 438, 10 S. E. 520, to embrace all cases where the officer received the money in his official capacity, but when he may not be...