Wimpey v. Evans

• Decision Date: 31 October 1884
• Citation: 84 Mo. 144
• Parties: WIMPEY, Appellant, v. EVANS.
• Court: Missouri Supreme Court

84 Mo. 144

WIMPEY, Appellant,

v.EVANS.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Greene Circuit Court.--HON. W. F. GEIGER, Judge.

AFFIRMED.

George Hubbert for appellant.

(1) The bond should not have been declared a lien on the land owned by Fields at the date of his bond, in view of the fact that the statutory bond which the law alone would have constituted a lien must have been conditioned for “two years next ensuing the first of January thereafter.” W. S. 1178, sec. 93. (2) Even if the bond was a lien the court below found no way of declaring any rule of law by which respondent could be subrogated to it, in view of the fact that even if the lien was still subsisting, he was only one out of thirteen sureties who had paid off part of the county's claim. One surety cannot be subrogated to an entire lien or security when others have an equal right with him who are not parties to the action. And he could not have relief upon the security or lien for his part, for that would involve a partial or pro tanto assignment that cannot be countenanced. Brandt on Suretyship, sec. 266. (3) The motion and proceedings on the bond in the McDonald circuit court were void; they were under a statute providing for summary remedy under certain conditions and fail to show those conditions, one of which was that the collection must have been made during his term of office for which the bond was given. And it was not sufficient to allege a balance in his hands at a date after the expiration of such term, the sureties not being liable for his acts unless shown to have been during his term of office for which they stood. Moss v. State, 10 Mo. 338; State v. Grimsley, 19 Mo. 178; State v. Dailey, 4 Mo. App. 179. (4) Another indispensable condition to the validity of the summary proceeding on the bond, under Wagner's Statutes, 1210, section 23, was that it should have been enforced while the collector was still in office. Ray v. Barr, 57 Mo. 292. (5) After the expiration of Field's term of office, the court had no jurisdiction over the subject matter, for when a statute gives a right and provides at the same time a remedy, the remedy must be strictly pursued, if at all. Potter's Dwarris on Stat. 275, N. 5; Lindell's adm'r v. R. R., 36 Mo. 543; State v. Bettinger, 55 Mo. 599. (6) The three years' statutory limitation had fully run before respondent sought any advantages from the lien. The answer of respondent setting up the lien for the first time was filed May 5, 1882. Field's term of office had expired January, 1877, and his collections should have been paid over on the third of each succeeding month of his term of the two preceding years. 2 W. S., sec. 167. The expiration of the three years precluded any remedy on his bond. 4 Mo. App. 178; W. S. 918, sec. 11. The debt being barred by the statute, the remedy to enforce the lien was also barred. 3 Parsons on Contracts (5th Ed.) 279; Seibert v. Copp, 62 Mo. 182; Biddle v. Probate Judge, 39 Mich.; Jones on Mort., sec. 218.

Henry C. Young and Charles W. Thrasher for respondent.

(1) The proceedings and judgment on the bond in the McDonald circuit court were in all respects in substantial compliance with the statute, and are at least valid in the collateral proceeding. Miss. Co. v. Jackson, 51 Mo. 23; Morgan Co. v. Lutman, 63 Mo. 210; Winston v. Affalter, 49 Mo. 263; Hardin v. Lee, 51 Mo. 241; Bailey v. McGinniss, 57 Mo. 362; Brackett v. Brackett, 53 Mo. 265; Kane v. McCown, 55 Mo. 181. To make a judgment valid on its face it is only necessary for it to appear that the court had jurisdiction of the subject matter of the action and the parties, and that a judgment had in fact been rendered. Maxwell v. Stewart, 22 Wall. 79; Pickering v. Templeton, 2 Mo. App. 424. (2) The case of Ray Co. v. Barr, 57 Mo. 292, is no authority against respondent. No such question as was involved in that case can arise here where there is a judgment in a court of general jurisdiction and an appearance to the proceeding by all the defendants. Want of legal notice is waived by appearance. Griffin v. Van Meter, 53 Mo. 430; Peters v. R. R., 59 Mo. 406.

HENRY, C. J.

This is a suit in ejectment for a tract of land in McDonald county. The cause was taken, on change of venue, to Greene county, where, on a trial, defendant obtained a judgment, from which plaintiff has appealed to this court. Both parties claim title under Calvin F. Fields, who, in November, 1874, was elected collector of the revenue for McDonald county, and gave bond with defendant and others as his sureties, for the faithful discharge of his duties, which was dated, approved and filed for record on the 17th day of November, 1874. The condition of the bond was, that he would faithfully and punctually collect and pay over all state, county and other revenue, for the two years ensuing the first of January, 1875, etc. The statutory condition is: “ For the two years next ensuing the first day of February, thereafter.”

Section 97 of the revenue law of 1872 provides that the bond of the collector, “when approved and recorded, shall be a lien against all the real estate of such collector, until he shall have complied with the conditions thereof.” On the 4th day of August, 1879, the county of McDonald filed its motion in the circuit court of said county against the collector and the sureties on his bond, for judgment against them for amounts of revenue collected by the collector and not paid into the treasury. All the parties to the bond except four as to whom the suit was dismissed, had due notice of the motion, and on a hearing thereof, the court rendered a judgment against them for $1158.95, and “that the judgment be a lien upon the real estate of said Calvin Fields that he owned at the date he entered into bond as collector of McDonald county.” On this judgment an execution was issued which was levied by the sheriff on the land in controversy, and sold, as required by law, and defendant became the purchaser, at the price of $775.00, and received a deed from the sheriff conveying to him the said land. Prior to the date of that judgment, or the institution of the proceedings under which it was obtained, the collector, Fields, and John Fields, were parties to a partition suit for the partition of lands held in common by them, including the lands in controversy, and a judgment of partition was rendered thereon, and also for costs. This judgment ante-dated that of the county against said Fields and his sureties on his official bond, and, under an execution issued on that judgment, Geo. Hubbert became the purchaser of said lands, and afterwards, by quit-claim deed, conveyed them to plaintiff, who at the same time held a mortgage thereon, executed by said Calvin Fields and wife in May, 1877. It does not appear that this mortgage was ever foreclosed.

By section 168 of the revenue act of 1872, the collector was required, on or before the third day of each month, to pay into the county treasury such sums as he may have collected of the county revenue for the preceding month. The plaintiff, in his replication to def...