Board of Supervisors v. Hall

42 Wis. 59 | Wis. | 1877

Cole, J.

"We cannot see that any reformation of the notes and mortgages is necessary. They were given to the county of Oconto for its benefit, and the county owns them. These facts appear from the complaint. It is true, the notes are made payable to the supervisors of Oconto county or their successors in office, instead of being made payable to the county of Oconto, and there is the same misdescription of the name of the mortgagee. But it seems to us this mistake should be treated as immaterial, so long as it appears that the securities were intended to be executed to the county for its benefit, and that the county now owns them. An action brought in the name of the supervisors, and not in the name of the town, was sustained in Bullwinkel v. Guttenberg, 17 Wis., 584; Cairns v. O’Bleness, 40 id., 469. As the securities are intended to secure the county against loss, a mere technical defense should not be favored. Dillon on Mum Corp., § 155. Where a bill or note is informal, it may be stated according to its terms, with an innuendo of its meaning. Chitty on Bills, p. 566. “ If the rules of law prevent the instrument declared on from operating according to the words of it, it may, ut res magia valeat quam pereat, be stated to have been made in such a manner as the law will give effect to -it, though there may be a verbal variation between that statement and the instrument itself.” id. “ A mis-description of the character of the payee will not vitiate, provided it can from the whole instrument be collected who was the party intended.” Chitty on Bills, p. 157; The King v. Box, 6 Taunt., 325. Where a person does business under an assumed name of trade, with an honest purpose, and a note is made payable to that assumed name as payee, the real party may sue thereon, and prove his interest and identity. Bryant v. Eastman, 7 Cush., 111. In the light of these authorities, these securities could surely be counted on as obligations to pay Oconto county by the name of the supervisors of Oconto county or their successors in office; and consequently no reformation of the contracts would seem necessary.

The mortgage given by Ben. R. Hall is doubtless valid as a voluntary obligation. Lewis, Gov., v. Stout, 22 Wis., 234; Cook v. Boyd, 16 B. Mon., 556; Emanuel et al. v. Laughlin, 3 Sm. & M., 342; Garretson v. Reeder, 23 Iowa, 22. It was given to secure the payment of the notes of Bichard L., the debtor of the county, and we can perceive no objection against its foreclosure.

It is stated in the complaint that all the notes and mortgages were given and accepted in pursuance of an arrangement entered into between the county and Kichard L. Hall, who was indebted to the county in a large amount for moneys which he had converted to his own use while 'acting as the treasurer of the county. It is objected that the supervisors of the county had no authority to make such an arrangement with its defaulting treasurer, or compound a claim of the county against him. We suppose the county board might take additional security for a debt due the county; and this is what, upon the face of the complaint, the transaction would seem to amount to. What principle of statutory or common law condemns such an arrangement? Cannot the board, in looking after the concerns and guarding the interests of the county, take security for the payment of a debt? But it is said that the treasurer is required to give a bond to account for all moneys which shall come to his hands by virtue of his office, and that, whenever the condition of the bond is forfeited, it is the duty of the board to put the bond in suit. Ch. 13, secs. 122, 123, and 136. There is nothing in this case which shows that a right of action has been released on the official bond of Richard L. Hall. This is not a suit upon the bond, and wre are not called upon to decide whether the county board had power to release a cause of action on the bond and discharge the sureties. It may well be that the board could not do that, and thus destroy the security which the statute requires should be given- for the protection of the interests of the county. But we do not understand that any such question is presented on this record. Eor there is no question here whether the treasurer and sureties have been released from responsibility on the bond or not; but whether the notes and mortgages are binding obligations, so as to be enforced for the benefit of the county. It is true, there is an allegation that the notes and mortgages were accepted by the county as full settlement and payment of so much of the indebtedness of Richard L. Hall as was equal to the face of the notes. But this does not repel or overcome the presumption that the sureties on the bond are liable for the whole deficit of the treasurer’s account.

The further objection is taken to the complaint, that several causes of action are improperly united therein. The action is to foreclose two mortgages of undivided interests in the same land, given to secure the payment of the same debt. We do not think there is any misjoinder of causes of action.

By the Gowrt. — The order of the circuit court overruling the demurrer, is affirmed.