State v. Wotring *

Decision Date06 December 1904
Citation49 S.E. 365,56 W.Va. 394
CourtWest Virginia Supreme Court
PartiesSTATE, to Use of CALHOUN'S ADM'R, v. WOTRING et al.*

JUDICIAL SALE—BOND OF COMMISSIONER—CONSTRUCTION.

1. In a decree for a sale of land on terms of part cash, part credit, the special commissioner is required before sale to give bond conditioned according to law. The bond is conditioned that he shall "faithfully discharge his duties as such commissioner, and account for and pay over, as required by law, all money which may come to his hands by virtue of said office." The bond binds the principal and sureties for all moneyreceived by the commissioner, whether from the cash or deferred payments.

2. A bond given under a statute must be construed, as to the scope of its obligation, to cover the objects of the statute in requiring it, if its words will at all allow such construction, and the statute is to be regarded a part of it.

(Syllabus by the Court.)

Error to Circuit Court, Preston County; John Homer Holt, Judge.

Action by the state, for the use of Calhoun's administrator, against D. M. Wotring and others. Judgment for defendants, and plaintiff brings error. Reversed.

P. J. Crogan, for plaintiff in error.

Neil J. Fortney, W. G. Worley, and R. W. Monroe, for defendants in error.

BRANNON, J. In a suit in Preston county, Wotring was appointed a special commissioner to sell lands to pay various debts, on the terms of one-third cash, and the balance in two payments, in one and two years; and the decree required him, before acting, to give a bond In the penalty of $2,000, conditioned according to law. He gave the bond, with Dawson and Fortney as securities. The bond recites such appointment as special commissioner, and says: "Now, if said Wotring shall faithfully discharge his duties as such commissioner, and account for and pay over, as required by law, all money which may come to his hands by virtue of the said office, then the above obligation to be void." Wotring sold the land for $3,080, receiving the cash payment, and took from the purchaser two notes for balance of purchase. Wotring was directed and authorized by the decree confirming the sale to collect the notes and pay their proceeds to the persons entitled under the former decree. He paid over the cash payment, and collected, but did not pay over the money collected for, the notes; and Calhoun, who was decreed a debt in the case, brought an action on said bond, in which the facts were agreed, and the court gave judgment for the defendants, and Calhoun brought the case here. The decree which required the bond was the first decree, and the subsequent decree provided for no other or further bond. It did not limit the bond to any particular part of the sale proceeds.

The sole question is whether the bond covers the money arising from the notes given for the deferred purchase money, or only the cash payment. It is contended that this bond was intended to cover only the cash payment, and was so understood by the sureties; that Wotring had no authority by law to collect the notes, and that the sureties are not bound for it; that the court ought to have required a second bond in the second decree; and that this omission cannot operate to charge the sureties. By no means can we agree to this contention. Section 1, c. 132, Code, edition of 1887—the law at the time—demands a bond before sale. It prohibits a commissioner from receiving any money before giving the bond, and, in words, prohibits him from making sale until a bond has been given. Neeley v. Ruleys, 26 W. Va. 686. Therefore we cannot say that the law contemplates two bonds in case of sale for part cash and part credit; but we can say that it requires a bond before sale, which ought to be...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT