State ex rel. Bothrick v. Potter

• Decision Date: 31 October 1876
• Citation: 63 Mo. 212
• Parties: STATE OF MISSOURI TO USE OF WM. E. BOTHRICK, GUARDIAN AND CURATOR, ETC., Plaintiff in Error, v. JABEZ H. POTTER, Defendant in Error.
• Court: Missouri Supreme Court

63 Mo. 212

STATE OF MISSOURI TO USE OF WM. E. BOTHRICK, GUARDIAN AND CURATOR, ETC., Plaintiff in Error,

v.JABEZ H. POTTER, Defendant in Error.

Supreme Court of Missouri.

October Term, 1876.

Error to Pettis County Circuit Court.

The bond here sued on was given by James M. Turley, as principal, with J. H. Potter and Bacon Montgomery, as sureties to the State, as guardian and curator of the minor heirs of one J. J. Turley, and was filed in the county court of Pettis county and approved. Afterward, the heirs having become residents of Johnson county, William E. Bothrick was appointed guardian and curator by the probate court of the latter county. The defense set up by Potter to the suit was, that he signed with the understanding and on condition that the bond should also be signed by Bothrick, as surety, and that Turley agreed not to file the bond until Bothrick had signed it.

Vest & Gantt, for Plaintiff in Error.

The bond was not an escrow. In State ex rel. Moore vs. Sandusky (46 Mo. 377), Judge Wagner, quoting frem Cutter vs. Whittemore (10 Mass. 442), says: “If there had been any agreement or condition at the time, that it should not be delivered as their deed (that of the sureties), unless the third person named as obligor should also execute it, this would show that it was also delivered as an escrow.” No other authorities are cited by Judge Wagner, and in Cutter vs. Whittemore only two authorities (2 B. & P., an English case, and 4 Cranch) are cited by the court. The case in 4 Cranch (Pawling against The United States) has been overruled by the Supreme Court of the United States, and the opinion stands upon the English authority alone, unsupported by any argument of the learned judge who decided the case. But unless the meaning of the word be misunderstood by the profession, a delivery of an escrow must be made to a third person (4 Kent, 454), and not to the obligor or co-obligor. (Deardoff vs. Foreman, 24 Ind. 492.)

The case of Linn County vs. Farris (52 Mo. 75) in which the opinion was delivered by Judge Adams, seems to ignore entirely the definition of an escrow. There the bond was delivered to the principal with the understanding that it was not to be delivered until certain parties had signed it as co-sureties, and it was held to be an escrow. The following cases are cited by Judge Adams in his opinion: State ex rel. Moore vs. Sandusky, supra; Gasconade County vs. Sanders, 49 Mo. 192; Cutter vs. Whittemore, supra; Pepper vs. State, 22 Ind. 399; Bagot vs. State, 33 Ind. 262; People vs. Bostwick, 32 N. Y. 445; Pawling vs. United States, 4 Cranch, 219; Duncan vs. United States, 7 Pet. 435; United States vs. Leffler, 11 Pet. 86; Seely vs. People, 27 Ill. 175. The case of Gasconade County vs. Sanders (49 Mo. 192), does not touch the point now under discussion. Pepper vs. The State (22 Ind. 399), is cited also by Judge Wagner in Ayres vs. Milroy (53 Mo. 522), and is said to contain “an exhaustive and elaborate review of the authorities on the question.” The case has been distinctly overruled in Deardoff vs. Foreman (24 Ind. 481), in an opinion delivered on a motion for rehearing, which notices every decision then made in the United States on this question, and especially criticises the cases of Pepper vs. The State and the People vs. Bostwick (32 N. Y. 445.) The cases from 4 Cranch, 7 Peters and 11 Peters, cited by Judge Adams, have been all overruled by the decision in Dair vs. The United States (16 Wall. 1), wherein Justice Davis says that the doctrine of estoppel applies to such a defense as the present.

In Virginia, Kentucky, Vermont, Maine, Indiana, Illinois and in the Supreme Court of the United States, the question at bar has been decided in our favor. (See also, 24 Grat. 202; Deardoff vs. Foreman, 24 Ind. 481; State vs. Peck, 53 Me. 284; Millett vs. Parker, 2 Met. [Ky.], 608; Taylor & Co. vs. Craig, 2 J. J. Marsh. 549; Bank of Commonwealth vs. Curry, 2 Dana, 143; Smith vs. Moberly, 10 B. Mon. 266; Passumpsic Bank vs. Goss, 31 Vt. 315; Dixon vs. Dixon, 3 Vt. 450, note by Judge Redfield, 3 Am. Law Reg., new series, 402; State vs. Pepper, 31 Ind. 76.)

Snoddy & Bridges, for Defendant in Error.

Where a deed is placed in the hands of another to be delivered after the performance of a certain condition, a delivery without its performance is not the act of the party and inoperative. Though signed and sealed, the deed is not his act--it is merely an escrow. (People vs. Bostwick, 32 N. Y. 445; State ex rel. Moore vs. Sandusky, 46 Mo. 377; Pawling vs. United States, 4 Cr. 209; Johnson vs. Baker, 4 Barn. & Ald. 440; Pidcock vs. Bishop, 3 Barn. & Cr. 605; Fletcher vs. Austin, 11 Vt. 447; Cutter vs. Whittemore, 10 Mass. 442; Linn Co. vs. Farris, 52 Mo. 75; Pepper vs. State, 22 Ind. 399; Ayres vs. Milroy, 53 Mo. 516; Preston vs. Hull, 23 Grat. 600; 2 Harr. 396; 11 Pet. 86.)

The bond might have been committed to a stranger under the same conditions that attached to it in the hands of Purdy. Certainly, in the latter case, the delivery would have been an escrow. And the same rule governs both cases. (Bibb vs. Read, 3 Ala. 88; State Bank vs. Evans, 3 Green [N. J.], 155; Carter vs. McCormick, 29 Mo. 464.) Lord Coke says: “In the delivery of a deed as an escrow two things are necessary: I, Words imposing the condition; 2, That the deed be delivered to a stranger, and not to the party himself to whom it is made,” showing that the word “stranger” is used in contradiction to obligee or covenantor. (1 Coke Litt. note L. p. 286.)

The case at bar does not depend on the probability which the character of the agent might furnish to the party receiving the instrument, that he had the power which he claimed, but upon the power actually conferred on him. Suppose the bond had been signed by defendant and left on his table with the intention of procuring the signature of Bothrick before delivery, and the principal had clandestinely abstracted it from the custody of defendant and presented it to the county court, and the same had been approved. The court would have received the instrument from the hands of the principal obligor, and the state of facts apparent to the court would be the same, yet it manifestly would not be the deed of defendant. In Perry vs. Patterson (5 Humph. 133) it was held that a bond, when delivered as an escrow to the principal obligor, and by the latter to the creditor, absolutely without condition, does not discharge the condition and constitute the delivery a valid delivery, although the creditor be absolutely ignorant of any condition. The court further observed, “The law upon this point is settled beyond controversy, and needs at this day no investigation.”

The liability of a surety on a bond cannot be extended by implication beyond the terms of this contract. (State ex rel. Moore vs. Sandusky, supra; State to use of Linn County vs. Farris, supra.) Where the co-surety's name is forged, the surety will not be held.

The same principle here invoked extends to promissory notes and other contracts not negotiable, or to negotiable contracts before negotiation. (Aude vs. Dixon, 5 Eng. L. Eq. R. 512; Lloyd vs. Howard, 1 Id. 227; Palmer vs. Richards, Id. 529; Leaf vs. Gibbs, 4 P. & C. 466.) But with regard to negotiable instruments after negotiation the rule is different. (Passumpsic Bank vs. Goss, 31 Vt. 315; Hatch vs. Searls, 2 Smale & Giff. 147; 1 Am. Law. C. 321, 322.)

Whether Bothrick's name was in the body of the instrument or not is immaterial. The question was one of power in Turley to deliver the bond; and nothing short of an estoppel could preclude defendant from denying it. His leaving the paper in a condition which would permit Turley to assert plausibly that it had been signed by all the persons who were expected to become sureties, fails utterly to create an estoppel. The county court had the power to ascertain his authority, and should have done so. (The People vs. Bostwick, 5 Tiff. [32 N. Y.] 452, 453; Levitt vs. Adams, 3 Wend. 380; Bibb vs. Reed, 3 Ala. 88; State Bank vs. Evans, 3 Green [N. J.], 155; Preston vs. Hull, 23 Grat. 600; 2 Harr. 396; Davenport vs. Slight, 2 Dev. & Bat. L. R. 381; 2 Pars. Cont. 723; United States vs. Nelson, 2 Brock, 64, opinion by Ch. J. Marshall; Harrison vs. Tiernans, 4 Rand. 177; Cleaton vs. Chambliss, 6 Rand. 86; 3 Am. Law Reg. n. s. p. 399, note of Redfield, J.)

Counsel proceeded to review cases cited contra, and contended that they were inconsistent, conflicting, and are neither sustained by the well settled principles of law nor the weight of authority.

SHERWOOD, Judge, delivered the opinion of the court.

We are to determine: Whether a curator's bond, regular in form, can be avoided at the instance of a surety, upon the ground that he had signed it under a conditional agreement, made at the time with the principal, that the latter was not to deliver the bond until the signature of a certain person had also been obtained, and that notwithstanding such agreement and in violation of it, the bond was delivered.

The question has been one prolific of litigation, and the conclusions reached by different tribunals have frequently exhibited no inconsiderable lack of uniformity. But it is thought that many decisions, which at first blush appear incapable of being harmonized, will be found, on more narrow examination of the controlling facts incident to each, to bear a closer resemblance than casual observance would, at the outset, lead us to suppose. In intimate connection with the subject under discussion, we are asked to review some of our former decisions in order that it may be ascertained whether they will bear the test of a closer and more deliberate examination than hitherto bestowed--an examination commensurate, both with the importance of the topic involved and with the greater facilities now afforded for such investigation, in consequence of recent and elaborate adjudications, some of which were not accessible, or else were overlooked, at the time our own, now...