17 Minn. 451 | Minn. | 1871
This action is brought against defendant Tullis, as principal, and the other defendants, as his sureties, upon his official bond as sheriff of Ramsey county, for the purpose of recovering certain redemption money, alleged to have been received by said Tullis, as said sheriff, for the use and benefit of certain judgment creditors, to whoso rights the present relator has succeeded. Defendants Bri'sbin and Roberts demurred to the complaint, as not stating a cause of action, and from the order overruling their demurrer they alone appeal to this court.
The complaint alleges that Tullis was duly elected sheriff of said county for the term commencing January 1st, 1860; that on ‘the 2d day of January, 1860, Tullis as principal, and his co-defendants as sureties, executed unto the board of supervisors of said county the bond, upon which this action is brought, (being in the usual form of a sheriff’s official bond;) that, at “a meeting or session of said board” on the 4th day of January, 1860, the said bond and sureties were duly approved by said board; that on the same day, “ at a special meeting or session of said board, Tullis took the oath of office prescribed by law; and that on the same day said Tullis entered upon the discharge of the duties of said office, and continued to hold said office and perform the duties thereof for a long period thereafter, to-wit: up to the 6th day of January, 1862.” The facts, upon which plaintiff seeks to charge defendants, are alleged in the complaint to have taken place between the first day of August, 1860, and the 1st day of January, 1862. Appellants object to the complaint, because it does not show that Tullis was qualified as sheriff at the regular January session of the county board as provided in section 50, ch. 7, Pub. St.; and because it does not allege that the oath required by law was subscribed to by Tullis and certified on the back of his certificate of election, or filed or recorded in the office of the
Not to consume space in presenting other answers to these objections, we are of opinion that they are all disposed of by a single consideration.
Tullis was unquestionably sheriff de facto, for he came into office by color of title, that is to say, by due election; he had taken the oath of office and executed the proper bond; had thereupon entered on the discharge of the duties of the office, and he continued to hold the office and perform its duties till after the acts and omission for which plaintiff seeks to hold him responsible in this action. In other words, he was sheriff by color of title, and the acting sheriff, and therefore sheriff de facto. (People vs. Collins, 7 Johnson 550; Greenleaf vs. Low, 4 Denio 168; Buckman vs. Ruggles, 15 Mass. 182; Conover vs. Devlin, 15 How. Pr. Rep. 477.) Being sheriff defacto, and exercising the functions of sheriff, his co-defendants are bound for him by the very terms of the bond, which is conditioned that he shall “ well and faithfully in all things perform and execute the duties of sheriff * * during his continuance in office ” And irrespective of the particular language of the bond, being sheriff de facto, his acts as sheriff were as valid, so far as third persons, having any interest in the acts done, and the public were concerned, as the acts of a sheriff de jure. In performing such acts he was sheriff to all intents and purposes,
Appellants further object to the complaint that it does not show that the bond was ever delivered, since it does not allege that it was deposited by Tullis in the office of the register of deeds, as required by the statutory provisions before cited. It is alleged that it was duly approved by the board. This implies delivery, for when a sheriff elect presents his bond for approval, he offers or tenders it to the board, and, by approving the same, the board accept it as his official bond: the contract is then complete, and the tender becomes a delivery. Apthorp vs. North, 14 Mass. 167; Broome vs. United States, 15 Howard 143.
The only objection made by the appellants, which remains to be considered, is, that the complaint does not show that the rcdemptioner therein mentioned had any authority to pay the redemption money to the sheriff, or that the sheriff had any authority to receive it. It appears that a pluries execution was issued to Tullis’ deputy sheriff upon a judgment in favor of a firm to whose rights in the premises the present relator, Lee, has succeeded; that, by virtue of said execution, said deputy levied upon certain real estate belonging to the judgment debtor, and duly sold the same for the balance due on the judgment, with interest and costs, to the judgment creditor, who received and duly filed and recorded a proper certificate of sale; and that the execution was returned wholly
Order overruling demurrer affirmed.