State v. Young

• Decision Date: 29 May 1877
• Citation: 23 Minn. 551
• Parties: STATE OF MINNESOTA <I>vs.</I> HENRY YOUNG and others.
• Court: Minnesota Supreme Court

Page 551

23 Minn. 551

STATE OF MINNESOTA vs. HENRY YOUNG and others.

Supreme Court of Minnesota.

May 29, 1877.

This act was brought, in the district court for Sibley county, against the defendant Young, as principal, and the defendants Lorenz Wolf, Louis Cramer, and Thomas Welch, as sureties, upon the official bond of the defendant Young, as county treasurer of that county. It was alleged in the complaint that, during the term of office for which the bond was given, the defendant Young, as county treasurer, received, and failed to account for and pay over according to law, the sum of $3,524.22, taxes levied and collected for state purposes; the sum of $1,710, received as principal of the purchase-money on sales of school lands, and belonging to the permanent school fund, so called; the sum of $2,909.97, interest on unpaid purchase-money of school lands, and belonging to the general school fund, so called; the sum of $99.47, interest on unpaid purchase-money of university lands, and belonging to the general university fund, so called; and the sum of $210, received for special

liquor licenses, and belonging to the state inebriate asylum fund, so called.

The bond in suit bore date January 1, 1872, and was signed and sealed by all the defendants. It contained a penalty of $25,000, and the following condition: "The condition of this obligation is such that, whereas the abovebounden Henry Young was, at the late annual election, duly elected to the office of treasurer of the county of Sibley, now, therefore, if the said Henry Young shall safely keep and pay over, according to law, all moneys which come into his hands for state, county, township, school, road, bridge, poor, town, and all other purposes, then this obligation to be null, and otherwise of full force and effect."

In their answer the defendants pleaded (among other things) that the instrument in suit was signed and delivered by them on Sunday; that it then contained no penal sum, and that the penalty was afterwards inserted, without their knowledge or consent, in the manner stated below. They also alleged that the defendant Young never gave the bond required of him by Gen. St. c. 38, before collecting any money, as principal or interest, on sales of school or university lands. The statutory provisions in regard to the bonds required of county treasurers will be found in the margin.¹

A jury was waived, and the case submitted to the court, L. M. Brown, J., presiding, upon an agreed statement of facts, in substance as follows:

On December 31, 1871, the defendant Young, who was then treasurer of Sibley county, and who, at the election in the preceding November, had been chosen his own successor for the term of two years, to begin March 1, 1872, caused the instrument in suit to be prepared as and for his official bond for the said term, beginning March 1, 1872. On the same day, which was Sunday, Young himself signed and sealed the instrument so prepared, and procured the other defendants to sign and seal it, each of whom, after doing so, returned the instrument to Young. When thus signed and sealed, the instrument contained no sum whatever as the penalty thereof; but the defendants Welch, Cramer, and Wolf did not examine the instrument, and did not know when they signed it that it contained a blank in place of the penal sum, nor did they know in fact that it was to be presented to the board of commissioners of the county for approval and acceptance. These defendants did know, however, when they signed and sealed the instrument, that it was intended to be used by the defendant Young as his official bond, for his term beginning March 1, 1872, and they severally signed and sealed it as and for his official bond; and, at the time of such signing and sealing, they intended to be bound that Young, as treasurer, should perform its condition. At the time of such signing and sealing, the defendant Welch was one of the sureties of Young's official bond, in the penalty of $25,000, for his term of office as treasurer, expiring March 1, 1872.

The instrument thus returned to him by the sureties, Young, on the same day, delivered to the county auditor, that it might be presented by him to the board of county commissioners, for their approval and acceptance, at their then next session, in the first week in January, 1872. On January 4, 1872, the auditor presented it to the board of commissioners, then in session, who directed him to fill the blank for the penalty with the sum of $25,000, which he did in the presence of the commissioners. The board then referred the instrument, thus completed, to the county attorney for his approval, who examined it and reported it to be in proper form, whereupon the board, at the same session, accepted the instrument as the official bond of Young, for his term beginning March 1, 1872, and ordered it to be recorded, which was done.

None of the defendants were present at the session of the board on January 4th, nor did any of them, except Cramer ever do any act of ratification or adoption of the instrument, as his deed, after he had signed and sealed it. Cramer, however, acknowledged the instrument after its acceptance by the commissioners, and before it was recorded.

No one of the commissioners, at the time the instrument was accepted and approved by the board, knew that it had been signed on Sunday. One of them, however, did know that Young had been absent from Henderson (the county seat, and the place where the bond was signed by all the defendants) since the evening of Sunday, December 31st, and had not returned at the time of the approval by the board, but he did not communicate this knowledge to the board.

No one of the sureties ever authorized any one to insert a penal sum in the instrument, except in so far as such authority was implied in the signing of the same on said Sunday, as and for the official bond of said Young, and permitting said Young to take the same with him.

After the approval of the bond, the defendant Young took the proper oath of office, etc., and entered on his duties as county treasurer, and, between March 1, 1873, and October 10, 1873, received $3,274.22 from taxes levied for state purposes, and $210 collected for special liquor licenses, under Laws 1873, c. 10, no part of which was ever paid over by him to the state, or to his successor in office, though payment was duly demanded of him, by the state treasurer, at divers times between March 10, 1873, and December 23, 1873, on which last-named day he was removed from the office of county treasurer.

During the same period the defendant Young, being such county treasurer, collected and received, for principal and interest on sales of school and university lands, the sum of $4,662.07, being the property of the state of Minnesota, and belonging to the general and permanent school fund and general university fund, no part of which, though properly demanded, has he ever paid to the state or to his successor in office. Prior to the collection of the moneys accruing upon sales of school and university lands, the defendant Young did not, as county treasurer or otherwise, execute any bond as required by Gen. St. c. 38, §§ 39, 42, 43, although he had been requested by the commissioner of the state land office to do so, and a blank bond had been furnished him for that purpose.

Upon these facts the court ordered judgment for the defendants, which was entered, and the plaintiff appealed.

Geo. P. Wilson, Attorney General, and Geo. B. Young, for the State.

M. J. Severance and W. P. Clough, for respondents.

MITCHELL, J.¹

Upon the agreed statement of facts in this case there are two questions of law to be passed upon: First, whether the instrument declared on ever was a valid bond? Second, if it was, did its obligation extend to those moneys received by Young on account of purchase-money of school and university lands?

The defendants urge that the instrument in question never had any force as against them; because: (1) When signed and sealed by them it did not express any penal sum, and this was afterwards inserted at the direction of the board of county commissioners, without authority; and (2) if executed at all, it was executed on Sunday.

In support of their first proposition, defendants insist that this instrument being a deed or instrument under seal, therefore authority to fill a blank therein with material matter could only be conferred by an instrument of equal solemnity — that is to say, one under seal.

Whatever may formerly have been the rule, or may still be the holding of some courts, upon this question, we think the better opinion, both on principle and authority, is that parol authority is adequate and sufficient to authorize an addition to, or alteration of, even a sealed instrument. At the present day, the distinction between sealed and unsealed instruments is arbitrary, meaningless, and unsustained by reason. The courts have, for nearly a century, been gradually doing away with the former distinctions between these two classes of instruments, and if they have not yet wholly disappeared, it simply proves the difficulty of disturbing a rule established by long usage, even after the reason for the rule has wholly ceased to exist. We therefore hold that parol authority is sufficient to authorize the filling of a blank in a sealed instrument, and that such authority may be given in any way by which it might be given in case of an unsealed instrument. Drury v. Foster, 2 Wall. 24; Inhabitants of South Berwick v. Huntress, 53 Me. 89; Woolley v. Constant, 4 John. 54; Ex parte Kerwin, 8 Cow. 118; Wiley v. Moore, 17 S. & R. 438; Field v. Stagg, 52 Mo. 534; Vliet v. Camp, 13 Wis. 198; Smith v. Crooker, 5 Mass. 538. Therefore, in our view, the only question is whether the facts, as stipulated in this case, establish parol authority from defendants to the board of county commissioners to insert a penal sum in the blank left in this instrument.

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