Blanton v. Commonwealth

20 S.E. 884, 91 Va. 1, 1895 Va. LEXIS 2

• Court: Supreme Court of Virginia
• Decided: January 17, 1895
• Status: Published

Opinion

Keith, P.,

delivered the opinion of the court.

The Commonwealth of Virginia, through its Attorney-General, gave notice to P. B. Crowder, principal, and B. W. Blanton, M. A. Blanton, Jacob Schlegel, P. E. Bridgeforth, J. A. Wallace, W. L. Scott, and Samuel D. Vaughan, sureties on his official bond as treasurer of Amelia county, bearing date 23d of June, 1887, that on the 16th day of May, 1892, the Circuit Court of the city of Bichmond, then in session, would be asked to render judgment against them for $4,386.93, due the Commonwealth for taxes, with interest on the several sums, constituting that aggregate from the dates set out in said notice. The notice was returned duly executed by the sheriff of Amelia county, and the paities thereto appeared through their attorneys and moved the court to quash the notice, and also demurred, which motion and demurrer the Circuit Court overruled. At another day the defendants filed a special demurrer in writing to the notice of the motion, in which demurrer the Commonwealth joined, and that demurrer ' was also overruled by the Circuit Court. These rulings constitute the subject of the defendants’ first bill of exceptions.

The defendants subsequently presented to the court three special pleas in writing, numbered 1, 2, and 3, to the filing of which the Commonwealth, by counsel, objected, and the objection was sustained. And this action of the court constitutes the subject of the defendants bills of exception Bos. 2, 3, and'4.

Upon plea Bo. 4, which is the plea of mil tiel record, the Commonwealth joined issue.

There can be no doubt as to the correctness of the action of the court in overruling the motion to quash the notice, and also in overruling the several demurrers. The notice is in the usual form, is sufficiently accurate and full, and gives the defendants all needful information as to the grounds of the Commonwealth’s complaint against them. See Board of Supervisors of Washington County v. Dunn, 27 Gratt. 608.

Upon the ruling of the Circuit Court rejecting the special pleas offered by the defendants, this court expresses no opinion, deeming it unecessary in the view that is taken of this case to do so. The Circuit Court doubtless proceeded upon the idea that the qualification of the treasurer under the laws of the Commonwealth of Virginia, including the execution of his bond as such, constitutes a record which can only be impeached by a plea alleging fraud in its piocurement. But, as before observed, this court at this time expresses no opinion as to the correctness of the ruling upon this point. The only plea presented in the Circuit Court, upon -which issue was joined, was that of nul tiel record. Upon the trial of this issue the defendants offered to prove certain facts by E. H. Coleman, clerk of the County Court of Amelia county, and by Jacob Schlegel, one of the parties defendant; but upon motion of the Commonwealth, through her Attorney General, Jacob Schlegel was rejected as a witness; and this action of the court in excluding the evidence of Jacob Schlegel, and refusing to allow him to testify, is the subject of the defendant’s 6th bill of exceptions.

The clerk, Mr. E. II. Coleman, went upon- the stand and stated that the records mentioned were the original records of the qualification of P. B. Crowder, treasurer of Amelia county, and that the blank seal left with no signature opposite thereto, and between the signature of J. A. Wallace and Samuel D. Vaughan, was so made and left blank for the signature of A. C. Tucker, who never signed the same; and that the certificate at the end or foot of said supposed official bond in these words, namely:

“In Amelia County Court, June 23, 1887:

This bond was executed and acknowledged in open court by the obligors to the same, and ordered to be recorded:

Teste: E. H. COLEMAN, C. C.” Aras not Avritten, nor the blanks thereof filled, up, until sometime thereafter, and he thought it Avas after May, 1892, and that the interlineations of the names of B. W. Blanton and M. A. Blanton were Avritten in the said order of Amelia County Court before the judge thereof signed it.

The only plea then being that of nul tiel record, and the only eAddence in support of that plea being the testimony of E. II, Coleman, just referred to, and the record of the County Court of Amelia of June 23, 1887, together Avith the. bond produced with said record, the Circuit Court decided against the defendants upon the plea, and held that there Avas such a record as the Commonwealth had declared upon, and, neither party demanding a jury, proceeded to ascertain the amount claimed to be due to the Commonwealth. It is insisted here that this judgment is erroneous, and that there is a material variance betAveen the record relied upon by the Commonwealth in its notice, and that produced upon the trial, and that the plea of nnl tiel record should have been sustained. We ay ill therefore enquire:

First, Avas there a variance? And secondly, was it material ?

It will be observed that the notice filed by the Attorney General at the institution of this proceeding in the Circuit Court is given to P. B. CroAvder, principal, and B. W. Blanton, and six others, as sureties on his official bond as treasurer of Amelia county, bearing date the 23d of Juñe, 1887, and that the name of A. C. Tucker nowhere appears in this notice. The record which is produced in support of the plea sets out that, “In Amelia County Court, June 23, 1887, Peter B. Crowder, who was on the fourth Thursday in May, 1887, duly elected by the qualified voters of the county of Amelia, treasurer for said county for the term of four years,' commencing on the first day of July, 1887, this day appeared in open court, entered into and acknowledged a bond in the penalty of $40,000, conditioned according to law, with. E. W. Blanton, M. A. Blanton, E. E. Bridgeforth, Jacob Schlegel, W. L. Scott, A. C. Tucker, J. A. Wallace, and Samuel D.-Yaughan, as his sureties, who waive the benefit of their homestead exemption, and made oath as to their sufficiency; and thereupon the said Peter B. Crowder appeared in court and qualified by taking the several oaths prescribed by law.” That is the record. It is contended by the defendant in error here that it imports absolute verity; and, from that record it appears that the bond of the treasurer, executed by the principal and his sureties, and accepted for the Commonwealth by the County Court of Amelia, without which acceptance it could not be a completed instrument, contained the name of A. C. Tucker as one of the sureties. Upon the bond wrhich accompanies the record, vouched by the Commonwealth in support of its contention, the name of A. C. Tucker does not appear. That there is a variance cannot be denied, nor is there in this record one word of explanation with respect to it, save the statement by the clerk of the court, and that is, that the vacant place opposite the signature immediately following that of J. A. Wallace was left blank in order that it might be executed by A. C. Tucker ; but, if this be a record, the evidence of E. II. Coleman cannot be considered; and if it is to be considered, its tendency is to show that it was an uncompleted transaction, and would have the effect rather to discredit than to establish the bond.

In the case of Fletcher, &c., v. leight, Barrett & Co.; 4 Bush (Ky.), 303, a case very similar to this in many of its features, it appeared that one W. 1ST. Peterson, who had been elected sheriff of Marshall County, Ky., appeared in the County Court with a certificate of election, and was thereupon duly swmrn into office, and with Fletcher, Palmer, Stone, Harrell, Thompson, W. B. Ely, Johnson, and Mathis as his sureties, executed covenant as required by law. He entered upon the discharge of his office, and had in his hands an execution in favor of the appellees, which he failed to return as required by law, and for that delinquency the appellees brought suit. The sureties made defense substantially on the pleas of non est factum and nul tiel record, and the Circuit Court found against them on the plea of nul tiel record. The proceedings on the other plea are not necessary to be here noticed.

It appears that, in Kentucky, the sheriff had to give three bonds, a county levy bond, a State revenue bond, and a general official bond. Ely, supposing that he had signed them all—all that were to be executed by the sheriff—left the court without executing the general official bond, upon which suit was afterwards instituted, and the court says: “As he did not sign the bond sued on, and there is no County Court order approving this bond without Ely’s name, we are called on to determine whether it was obligatory on the other securities. The County Court being a court of record, can only speak by its record, especially in the absence of any issue by the pleadings of mistake or fraud; the approval, therefore, by the County Court, of an officer’s securities, must appear on record.

However numerous and solvent the proposed securities may be, this does not make the bond obligatory until the court has passed its judgment of approval. Indeed, until this is done, it is not delivered to the Commonwealth, nor can be. It is this approval by the tribunal, designated by law, which completes its execution and delivery, and makes it obligatory. ”

This language is as applicable to the case at bar as to that in which it was used. The duty of the County Court of Amelia is essentially the same as that of the County Court of Marshall county, Ky.; and, if the name of "W". B. Ely is substituted for that of A. C. Tucker, we have a substantially identical state of facts. There, as here, the County Court was charged with the duty of superintending the execution of official bonds. The County Court here, as in Kentucky, speaks only by its record, and its approval is with us as necessary as it appears to have been in that case; and it may be said here, as it was declared there, “that it is the approval of the bond by the tribunal designated by law to superintend its execution, which completes its execution and delivery and makes it obligatory. 5 ’ The court goes on to say, ‘ ‘When the County Court, therefore, approves the proposed names and individuals as sureties in a bond, and directs its clerk to prepare the bond, he has no more authority to witness and accept it until all the named sureties sign it than he has to accept it without the principal’s signature. If he may waive the signature of one surety, he may waive all.

When the court has designated certain persons and approved them as sureties, no alteration can be made by leaving off a name or substituting another therefor. The bond must be prepared and executed, in conformity to the judgment of approval, else it is not the bond approved and accepted by the court, and every alteration by the clerk, either in omitting a designated party or substituting another, is wholly unauthorized, and his attestation to such a bond of no validity. ’ ’

There would then appear to be a variance. It remains to be considered whether that variance is material. In the case just quoted, in 4th Bush, the court says: “When the principal has proposed certain names as his sureties, and these have been approved by the court, each of the sureties, as he signs, has both the legal and moral right to expect and rely upon the officers to see that each approved party shall sign it, and not to regard it as execufed and delivered until so perfected.”

Now here the bond as prepared contains the names of eight sureties. The burden and responsibility which they assumed was to be distributed among eight, whereas the bond sought to be enforced distributes that liability among seven. Surely this most seriously affects the rights of-the sureties in respect to contribution among themselves in the event of the default of their principal.

In conclusion, I will say, that it must always be borne in mind that there is no evidence to fix any liability upon the plaintiff in error save the record of Amelia county, and that issue was joined upon no plea save that of nul tiel record. All other pleas, and all other evidence which might have thrown light upon this transaction, were excluded at the instance of the Commonwealth. Upon the record adduced, the parties must stand or fall; and that record shows the acceptance by the court charged with the duty of seeing to its execution, of the bond with the signatures of eight sureties thereto, while the bond produced presents signatures of but seven. On principle and authority, those sureties had a right to expect and to require that every name presented and accepted should appear upon the bond. The Commonwealth, through its officers, had notice, as appears on the face of the record, of the names agreed to be taken. It was the duty of her officers to see to it that the bond agreed to by the-parties should be executed, and none other, and these defendants had a right, as was said in 1th Bush—a right, in morals and in law—to rely upon the due performance by the agents and officers of the State of the duties with which they were charged by law. By inadvertance, doubtless, innocently and without any wrongful intent, that duty was neglected. Who shall bear the consequences ? Innocent parties, or the Commonwealth, by whose agents and officers the mistake was committed? Sureties stand upon the letter of their contract. Their liability is always stricUssvnvi juris, as was said in McCulsky v. Cromwell, 1 Kernan, at p. 598, and cannot be extended by construction. To the same effect, see Smith v. United States, 2 Wallace, at 237. The correct rule, says the Supreme Court of the United States, in the case just cited, is that “ Any variation in the agreement to which the surety has subscribed, which* was made without the surety’s knowledge or consent, and which may prejudice him, or which may amount to the substitution of a new agreement for the one subscribed, will discharge the surety.” Here we have seen the sureties subscribed to a bond duly accepted by the County Court of Amelia, in which their liability was divided among eight. The attempt here is to enforce a liability upon a bond in which there are but seven obligors. There is no evidence in this case which suggests the idea, or creates a suspicion, that the sureties, or either of them, assented or consented to the material change thus made in the contract by which they had agreed to be bound, or that they had any knowledge thereof, or were in possession of any fact which should have put them upon enquiry.

For these reasons, we are of opinion that the judgment of the Circuit Court should be reversed; and this court, proceeding to render such judgment as the Circuit Court should have rendered, will direct that the notice by which the proceeding in the Circuit Court was commenced, shall be dismissed.

Reversed.