State ex rel. Terry v. Blakemore

• Decision Date: 09 March 1872
• Citation: 54 Tenn. 638
• Parties: STATE ex rel. TERRY, WALSH et al. v. W. H. BLAKEMORE et al.
• Court: Tennessee Supreme Court

54 Tenn. 638

STATE ex rel. TERRY, WALSH et al.

v.W. H. BLAKEMORE et al.

Supreme Court of Tennessee.

Mar. 9, 1872.

FROM SUMNER.

From the Chancery Court, September Term, 1867. THOMAS BARRY, Ch.

J. W. HEAD for complainant.

SMITH & GUILD, J. J. TURNER, and W. S. MUNDAY for defendants.

SNEED, J., delivered the opinion of the Court.

The record embodies six distinct causes, which were consolidated and heard together in the Chancery Court of Sumner county. The defendant Blakemore was appointed Clerk and Master of said Court on the 10th of September, 1855, for the lawful term of six years, and resigned said office in December, 1860. The complainants seek severally to hold the defendant and the sureties on his official bonds liable for official default on his part, in failing to pay over to them certain moneys belonging to them came into his hands as Clerk and Master, and as Commissioner of Sales, under the orders and decrees of said Court. The questions submitted are important, and some of them novel in the courts of the State.

The defendant Blakemore, upon his appointment to said office, made and executed four several bonds as required by law, for the discharge of the various duties devolved upon him, and which under the law might be imposed upon him in that relation. The first of these bonds was in the penalty of $10,000, conditioned that said Blakemore should safely keep the records of the Court and truly and faithfully discharge the duties of said office. The second was in the penalty of $5,000, conditioned for the payment of all money arising from taxes on suits. The third bond was for $1,000, and was for the collection and payment of fines and forfeitures; and the fourth and last bond was in the penalty of $5,000, conditioned that the said Blakemore, Clerk and Master of the Chancery Court at Gallatin, for the county of Sumner, State of Tennessee, shall well and truly pay over and account for all moneys that shall or may come to his hands upon sales of property made by him under orders and decrees of said Chancery Court.

It is upon the first and fourth of these bonds that complainants seek to predicate the liability of defendants. The same persons became bound as sureties on each of these bonds, and among them were J. A. Blakemore, who is now dead, and whose estate is insolvent, and Jo. C. Guild. The first named was the father of W. H. Blakemore, the Clerk and Master. As the equities attaching to the several cases are somewhat different, they will be distinguished in this opinion as the Walsh case, the Lloyd case, the Terry case, the Wilson case, the Bailey case, and the Thompson case. For, in any event, the liability of the sureties in each case must depend upon the peculiar relation of their principal to the fund alleged to have been lost by his default. It is not contended that the second and third bonds above enumerated have anything to do with the questions at issue. Our inquiry will therefore only be as to the liability of the defendants under the equities disclosed upon the first and fourth bonds--the former to safely keep the records of the Court and truly and faithfully discharge the duties of the office, and the latter well and truly to pay over and account for all moneys that shall or may come into his hands upon sales of property made by him under orders and decrees of the Court.

The Act of 1794, ch. 1, sec. 2, is in the words following: “There shall be a clerk to each of the Circuit Courts, of skill and probity, who shall each of them give bond with security, payable to the Governor and his successors in office, of $10,000 for the safe keeping of the records and the faithful discharge of the duties of his office, which said bond shall be lodged in the Secretary's office, and may be put in suit on the assignment of the Governor by the party or parties injured in his or their own name, and shall not become void on the first recovery, or if judgment be given against the plaintiff, but may from time to time be put in suit by action of debt until the whole penalty be recovered.” Car. & Nich., 155. All official bonds were by a late act made payable to the State of Tennessee. In 1849, by ch. 150, it was enacted that all clerks of the Circuit, Chancery, or Supreme Courts, elected or appointed after the passage of this act, when appointed by the courts of which they are clerks respectively, to act as special commissioners to sell property under any decree of the courts of which they are clerks, or as receivers, shall, together with their sureties, be liable for the faithful discharge of their official duties under the bonds executed by them, under the Act of 1794, ch. 1, sec. 2, for all sums of money that may come into their hands by virtue of said appointment as special commissioners or receivers. The second section of this act provides that it shall be the duty of the Judges of the Circuit, Chancery, and Supreme Courts, at the first term of their respective courts after the passage of this act, to cause the clerks of the said courts to execute bonds with good security in such sums as the Judge or Judges of said courts may deem sufficient, conditioned for the faithful accounting for, and paying over, all such sums as may come into their hands as such special commissioners. The third section gives the court the power, whenever they deem it necessary, to require a larger bond, not exceeding double the amount of the supposed value of the proprty to be sold. On the 27th of February, 1852, the Legislature passed another act, entitled “An Act to require clerks of the different courts to give additional bonds.”

The first section provides that it shall be the duty of the different County and Circuit Court Clerks in this State at the June Term, 1852, of the several County Courts in this State, to enter into bond and sufficient surety in the sum of $10,000, or such larger sum as the Court may direct, payable to the State of Tennessee, to be approved by said County Courts, as now directed by law in taking official bonds from clerks in this State, conditioned that they will faithfully account for and pay over as the law directs, all moneys that have or may hereafter come into their hands as commissioners, by virtue of any order or decree made by their said courts, to sell the real or personal property belonging to any femme covert or minor, or to the estate of any deceased person. The second section requires the different Chancellors, at the first term of their courts held after the passage of the act, to take a similar bond in a like penalty and with like conditions from their Clerks and Masters. Acts 1852, ch. 164.

It is under these several acts that the bonds of defendant were given, and that it is sought to hold him and his sureties liable. The theory of the complainants is, that their respective demands will fall within the conditions of one or the other or both of these bonds, and that when the penalty of the one is exhausted they may resort to the other; that the first section of the act of 1849, ch. 150, making the Clerk liable for moneys collected as Special Commissioner or receiver, on the bond for the faithful discharge of his official duties, is still in force, and not repealed by the act of 1852, ch. 164, above quoted.

The facts necessary to illustrate the equities of the parties are these: In the Walsh case the complainant was entitled to a legacy of $3,000 under the will of Page P. Parker, to be paid upon his attaining his majority, and until that time the testator's widow was entitled to the use of half the fund, and his brothers and sisters to the use of the other half. The widow intermarried with C. J. Coke. The land and slaves were sold under the decree of the Chancery Court of Sumner, and after reserving said legacy of $3,000, the remainder of the fund was ordered to be distributed under said will. While the proceedings for the sale and settlement of the estate of Parker were pending, this complainant by next friend filed a petition in said Court to secure said legacy of $3,000 upon his arriving at full age. The petition was heard on the 16th of September, 1858, when the Court made a decree ordering that in the event that Coke and wife and the heirs of the testator shall prefer not to receive said fund, the same shall be paid over to the guardian of complainant, to be loaned out for his benefit. The Court also decreed that before paying the fund over under the decree to the parties entitled, should they elect to receive it, the Master will require of them a bond, each in the penalty of $3,000, conditioned that said fund will be paid over to the said complainant or his representatives at the time he or they shall be entitled thereto under said will, which bond the Master will require to be renewed from time to time as the safety of the fund may require. On the 10th of March, 1858, judgments were taken for such portions of the purchase money as remained unpaid. So the entire amount of the $3,000 was collected. The circumstances seem to show that the parties entitled under the will to the use of the funds during the minority of complainant elected not to receive it and execute said bonds. No bonds were executed by them. Though the deposition of the Clerk is taken, it fails to show that any such bonds were executed, or the money paid over as required by said decree. On the 4th of October, 1860, having previously used the money, he took the note of his father, with J. C. Guild as security, payable to himself as Clerk and Master, for $2,590, due twelve months after date, bearing interest from date, and for the use of the legatees of P. P. Parker. In his deposition, the Clerk in reference to said note says: “I would state that it was a note given under the following circumstances: According to the will of P. P. Parker, the minor R. J. Walsh was to receive upon his attainiing his majority the sum of $25,000. There was no order from the Court to loan out this fund, which had been...