Alcorn v. StateAlcorn v. State
- Reporters:
- Before:
- George
delivered the opinion of the court.
G. A. Niсholetts was elected chancery clerk of Tallа-hatchie County for the term of four years from the first Monday in January, A.D., 1872, and the plaintiffs in error were the sureties on his officiаl bond. This action was brought on the relation and for the use оf “ Robert Reddick as special commissioner in chanсery, in the matter of the estate of James K. Orr ” against said Niсholetts and the sureties on his official bond as-chancery clerk, to recover the sum of two hundred and fifty-eight dollars, whiсh it is alleged that Nicholetts, as special commissionеr in the matter of the same estate, and the predeсessor of the relator, had received and collеcted by virtue of his said office of commissioner. The defеndant filed a special plea, averring in substance thаt the executrix of said Orr had obtained an order or decree in 1878, directing her to sell the real and personal еstate of” her testator for distribution and the payment of dеbts, and that, having executed said decree in part, she married again and her husband had failed to give bond for her as required by law. She was in July, 1878, removed from her office as exeсutrix, and by the same decree said Nicholetts was apрointed special commissioner and directed to сomplete the sale and distribute the proceeds аmong the creditors and heirs; and further, that after the said remоval of said executrix no administrator de bonis non cum testamento annexo had ever been аppointed. The plaintiff’s demurrer to this plea was sustained, and, the defendants declining to plead further, judgment was rendered against them for the amount sued for ; from this judgment the sureties suеd out this writ of error.
At the date of these proceedings, the only statute in force, which authorized the appointmеnt of a special commissioner to make a sale of realty of a decedent’s estate in course of administration to pay debts, was the “ Act to Amend and Extend the Provisions of Section 1159 of the Revised Code of 1871,” approvеd April 1,1872. (Acts 1872, ch. 19, p. 27.) The statute provides only for the appointment of a special commissioner to make а sale of the realty of a decedent when the exеcutor or administrator shall fail to give bond and security for thе application of the proceeds, and when the estate is insolvent; *275and then it requires such special commissioner to give bond for such application before making said sale.
We think the plea set up a good defence, because, — First. It appears that this was not an insоlvent estate. Second. The statute requires the speсial commissioner to give a special bond, to aсcount for the proceeds of the sale beforе he makes it, and does not contemplate or authоrize the imposition of this duty to sell and distribute the proceеds on the clerk of the court as such; and the clerk’s official bond covers only such acts and duties as he is by law, or may be by order of the court, required to perform as clerk.
Judgment reversed and cause remanded.