State ex rel. Pace v. McCormack

• Decision Date: 31 October 1872
• Citation: 50 Mo. 568
• Parties: THE STATE OF MISSOURI, TO USE OF WILLIAM H. PACE, ADMINISTRATOR OF WILLIAM SEATON, Plaintiff in Error, v. R. J. MCCORMACK et al., Defendants in Error.
• Court: Missouri Supreme Court

50 Mo. 568

THE STATE OF MISSOURI, TO USE OF WILLIAM H. PACE, ADMINISTRATOR OF WILLIAM SEATON, Plaintiff in Error,

v.R. J. MCCORMACK et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1872.

Error to Montgomery Circuit Court.

R. W. Jones, for plaintiff in error.

The defendants are liable on defendant McCormack's sheriff's bond for the money sued for, because it was received by McCormack in his official capacity during the term of office covered by their bond, although the money arose from a partition sale made by him during a previous term of office, covered by a bond with different sureties. (Ingram's Adm'rs v. McCombs & Farrar, 17 Mo. 558-561; Todd et al. v. Boone County, 8 Mo. 436.)

Sanders & Carkener, for defendants in error.

To charge the second bondsmen, an order should have been made by the court transferring the business to McCormack as sheriff by virtue of his second election. (Wagn. Stat., partition act, § 36; The State, to use of Vance, v. Marney, 13 Mo. 7.) The liability of sureties will not be extended beyond the very terms of their contract. (Miller v. Stuart, 9 Wheat. 680; Blair v. Perpetual Ins. Co., 10 Mo. 559; 8 Mo. 549.) McCormack, as sheriff for a first term, is, in the eyes of the law, so far as his sureties are concerned, as distinct from himself, as his own successor, as a third party would be. (13 Mo. 7; 26 Mo. 226; 13 Mo. 437; Wagn. Stat. 612, § 58.)

WAGNER, Judge, delivered the opinion of the court.

McCormack, the defendant, was sheriff of Montgomery county, and during his first term of office, by order of the Circuit Court, he sold some lands which had been adjudged to be sold in partition. The terms of the sale were half cash to be paid down and the balance in six months. The money for the deferred payment was collected by McCormack after he had been re-elected to the office of sheriff, and while he was serving his second term, and had given new sureties, and he failed to pay the same over to the person entitled thereto, in pursuance of an order made by the court for that purpose. This suit was brought against him and his sureties on his second bond, and the court sustained a demurrer to the petition, deciding in effect that the sureties in the last bond were not liable. It is to reverse that decision that this writ of error was sued out and prosecuted.

It does not appear that any order of court was ever made transferring the business touching the matter of the partition to the new sheriff as his own successor, and it is therefore argued that all his acts were done in furtherance and completion of his sale made in his first term, and that the sureties on his first bond were alone responsible for the breach and default. No principle of law is better established than that where an officer proves a defaulter, and has held the office under different appointments, with several sets of sureties, the sureties will be responsible who were on the bond at the time the defalcation occurred. (Draffen v. Boonville, 8 Mo. 395; Todd v. Boone County, id. 431; The State v. Smith, 26 Mo. 226; Smith v. Paul, 21 Mo. 51; Drury v. Drury, 36 Mo. 281; The State v. Atherton, 40 Mo. 209.)

This is the general principle, but it is sought to evade it in this particular case on the ground that the statute points out a different rule. The case must be decided by a construction of the law relating to partition. (Wagn. Stat. 971, §§ 35, 36.)

The question is not new in this court; it has been directly presented in two former cases, in both of which the facts were essentially the same as in the one we are now considering. The first is Marney et al. v. Vance, 13 Mo. 7. There a sheriff during his first term made a sale of real estate on credit, under the statute concerning partition. He was elected for a second term and gave a new bond. During the second term he collected the money...