State ex rel. Lowry v. Davis

• Citation: 96 Ind. 539
• Decision Date: 22 April 1884
• Docket Number: 11,157
• Parties: The State, ex rel. Lowry, v. Davis et al
• Court: Supreme Court of Indiana

96 Ind. 539

The State, ex rel. Lowry, v. Davis et al

No. 11,157

Supreme Court of Indiana

April 22, 1884

Petition for a Rehearing Overruled June 26, 1884.

From the Madison Circuit Court.

The judgment is reversed, with costs, and the cause is remanded with instructions to overrule the demurrers to each paragraph of complaint, and for further proceedings not inconsistent with this opinion.

J. W Sansberry, M. A. Chipman and J. W. Sansberry, Jr., for appellant.

C. L Henry and H. C. Ryan, for appellees.

OPINION

Howk, C. J.

In this case, the joint demurrers of the appellees were sustained by the court to each paragraph of the relator's complaint, for the alleged want of sufficient facts therein to constitute a cause of action. The relator excepted to each of these rulings, and, declining to amend or plead further, judgment was rendered against him for appellee's costs. From this judgment he has appealed to this court and has here assigned, as errors, the decisions of the circuit court in sustaining appellees' demurrers to each paragraph of his complaint.

The relator's complaint contained two paragraphs, in each of which he declared upon the official bond of the appellee, Albert C. Davis, as the recorder of Madison county, against him and the other appellees as his sureties therein. In the first paragraph of his complaint, the relator alleged that at the general election held in Madison county, in October, 1878, the appellee Davis was duly and legally elected recorder of such county, for the term of four years from and after the -- day of November, 1878, and was qualified according to law and entered upon the discharge of his official duties as such recorder; that, on the day last named, he and the other appellees, as his sureties, executed the bond in suit in the penal sum of $ 2,000, payable to the State of Indiana and conditioned, as required by law, that if he, Albert C. Davis, should honestly and faithfully discharge the duties of his office, as such recorder, according to law, then the bond was to be null and void, otherwise to be and remain in full force; and that such bond was duly approved by the board of commissioners of such county, and, with his official oath endorsed thereon, was filed by appellee Davis, in the clerk's office of Madison county.

And the relator averred that the appellee Davis did not faithfully discharge his duties as such recorder, according to law, in this, that on the 18th day of March, 1880, the relator and his wife executed to one Nathan Lowry their warranty deed of certain real estate, in Madison county, for the sum of $ 3,600, and that it was stipulated in such deed, "said grantee agreeing to assume and pay the sum of $ 500 as secured by mortgage given by this grantor on said land to one Jackson Brunt of Madison county, Indiana;" which mortgage was given to secure $ 3,300, owing by relator to said Brunt, which debt was evidenced by his promissory notes payable at different times, as shown and stated in said mortgage; whereby said grantee became liable for said sum and said land also liable therefor, and thereby giving notice and knowledge to subsequent purchasers that there was due, upon the purchase-money therefor, the sum of $ 500; and that on the 19th day of March, 1880, the said deed having been duly acknowledged, according to law, to entitle it to be recorded, was presented to, left with and received by the appellee Davis, as such recorder, at nine o'clock A. M. of the last named day, and was by him, as such recorder, recorded in deed-book No. 55, on page 533, of the records of Madison county; but that by mistake, oversight, negligence, carelessness and omission of duty of appellee Davis, as such recorder, such deed was recorded as stating that "said grantee agreeing to assume and pay the sum of $ 200, as secured by mortgage given by this grantor on said land to one Jackson Brunt of Madison county, Indiana;" that said lands were purchased by and became the property of persons who had no knowledge of such mistake and oversight, and said Nathan Lowry became notoriously insolvent and worthless, and subsequently died insolvent, and his estate was worthless; that said notes became due, and, to avoid a suit and judgment against him thereon, after their maturity the relator was compelled to, and did, pay all said notes and interest thereon, including said $ 500 and accrued interest, by reason of such negligence, carelessness and omission of duty of appellee Davis, as such recorder; which sum was due from the appellees and wholly unpaid; and that the appellees had wholly failed and refused to pay the same, or any part thereof, although often requested so to do. Wherefore, etc.

In the second paragraph of complaint, substantially the same breach of the bond in suit is alleged by the relator, but in somewhat different language, as in the first paragraph.

The bond in suit was given under and pursuant to the provisions of section 5929, R. S. 1881, in force since May 6th, 1853 which simply requires that the recorder of each county "shall give bond in the penal sum of two thousand dollars." The act, in which this section is found, was approved May 31st, 1852. Subsequently,...