Dawson v. Lee, 83 Ky. 49

Dawson v. Lee

83 Ky. 49 | Ky. Ct. App. | 1884

JUDGE LEWIS

delivered the opinion of the court.

This is an action by appellant Dawson and appelleesT-Till and Greenwell, to subject a tract of land owned by J. A. Lee to the payment of $-, one-third of which they each, as alleged sureties- in a revenue bond given by J. H. Hays, sheriff of Bullitt county, paid into the Treasury of the State.

Upon final hearing, personal judgment was rendered *51in favor of each of the plaintiffs in the action against-Hays for the sum of $824.16, subject to certain credits-mentioned, and the land was directed -to be sold to satisfy, first a debt in favor of Simmons secured by mortgage executed prior to the revenue bond, and. second, to pay the claims of Hill and G-reenwell. But it was adjudged that Dawson is not entitled to a lien upon the land, and the petition, so far as it sought to sell it to pay his claim, was dismissed. mw/ N

From the judgment Dawson & Lee have prosecuted, separate appeals. But as the questions involved are-connected, and only one transcript is presented, they will be heard together. ,,,-j

As the sale and conveyance of the land in controversy by Hays to Lee was made in April, 1881, after' the execution by Hays and his securities of the revenues bond, which was done the first Monday in January, 1880, it is manifest the lien of the Commonwealth was created and existed before Lee acquired title to the land, and that those of the plaintiffs who were bound as sureties are entitled by substitution to a lien on the land for whatever amount they have been compelled to pay into the Treasury of the State by reason of the default of the sheriff.

But it was alleged by the defendant, Lee, that Dawson never, in the manner required by law, executed the revenue bond, and was not legally bound as surety to pay any part of the revenue into the Treasury of the State, and that such payment by him was voluntary and gave him no right to the lien held by the Commonwealth upon the land purchased by Lee. of the sheriff, Hays.

*52It appears that the name of Dawson was signed to the bond without his presence, by the clerk of the •'county court, in pursuance of authority contained in a paper purporting to be a power of. attorney executed .in presence of one Kinnison, who signed Dawson’s .name, and his own as an attesting witness.

.Section 20, chapter 22, General Statutes, is as follows: “No person shall be bound as the surety of another by the act of an agent, unless the authority of the agent is in writing signed by the principal; or if the principal do not.write his name, then by his sign or mark made in the presence of at least one. •credible attesting witness.”

“The language of the section seems to be imperative, and without exception, that in all cases of suretyship, in order that the act of one may bind another ;as surety, such act must be done under written authority from the one held to answer as surety.” (Billington v. Commonwealth, 79 Ky., 400.)

In that case the name of the surety was signed not to a power of attorney but directly to a bail bond, in presence of the judge of the court, who accepted the bond, and in presence of the surety and by his direction, yet not being signed by the surety in person but by his attorney, he was held not to be liable.

One of the objects for which the statute was enacted was to correct the evil growing out of, the loose practice of those whose duty it is to take official and bail bonds, and it can not be properly construed otherwise than has been done in the case referred to.

It being then clear that Dawson was not legally .hound as surety upon the revenue bond executed by *53Hays, the sheriff, and that the payment made by him into the State Treasury was voluntary, is he now entitled to a lien by surrogation upon the land of Lee, the purchaser, in order to indemnify himself.

“The general principle, that no one can make himself the creditor of another without his consent, or-against his will, is familiar. But where one is surety for another, and pays the debt which the principal, owes, the law implies that .the latter requested such, payment to be made, and also implies a promise to> repay him. But the surety must be under some legal, obligation to pay, otherwise the implication of a. request to pay and promise to pay will not arise.” (Kimble v. Cummins, 3 Met., 327.)

In that case an execution upon a replevin bond in. which Cummins was the surety of Kimble, being issued and levied upon the property of the former, he satisfied the debt, and then by an action in equity sought to subject certain property qf his principal to re-imbnrse himself. But as more than one year had elapsed, from the maturity. of the replevin bond until the issuance of the execution which Cummins satisfied, he was by statute released from all liability upon the bond, and, consequently, as held by this court,, he could not pay the debt and look to his principal for re-imbursement. For, after his release, he was no longer a surety, and, therefore, not entitled to any of the rights growing out of such relation.

In the case of Spillman & Duff v. Smith, 15 B. M., 134, the same principle was held applicable where the surety in a sale bond satisfied it after he became released from legal liability.

*54It was thus "determined in both those cases, and we "think correctly, that a surety in a -bond who satisfies it after he has been released as such, “occupies no "better attitude than that-of any other person paying ■the debt of another without request or authority, implied or expressed.” And that a-mere stranger or volunteer, who pays the debt of another, ■ can not be substituted to the creditor’s rights, is a proposition too plain and well settled to argue".

The contest here, however, is not between a surety rand his principal; but a party is seeking to subject the land of a vendee to re-imburse-himself for the payment of a debt of the vendor that he never was legally liable to pay as surety or otherwise.'

If he could not pay-the debt after being released as ■surety by operation of law, and look to the principal ,as was held in the case of Spillman & Dufl= v. Smith, it would seem reasonable that he" should hot be per-omitted to re-imburse himself out of the land of a purchaser for the payment of a-debt of ; another that he* was never bound for at all. • ■■■ '■

Whether the vendee in such a case has or hot been benefited to the''extent -of-’ thé payment-made-is hot a-material question;- He may or: may '.not- have 'had‘ • suificient security or-, indemnity ■ against :a breach ■ of ' ■contract by Ms-vendor. '■■•However, whether he had-or’ • not, it is sufficient' to* relieve his--land from'-a lien'in '' ¡such case that the party-'-asserting it- occupies the" ¡attitude of a mere stranger of volhhteerl - -

Upon the cross-appeal of'-Uee'fronrthe judgment in."' favor of Hill v:.“ Greenweir'vari'ous'-questions'are pre- ‘ seated: ! •1

*551. It appears that after he purchased the land Lee paid to Hays a considerable amount of the purchase money, which the latter as sheriff paid into the -State Treasury in part discharge of. his revenue bond for 1880, and got credit therefor. Inasmuch tas the money paid by Lee was accepted and so appropriated by the sheriff, and the sureties in the bond were to .that extent relieved from responsibility, Lee is entitled .at least to share pro rata with them in the proceeds ■of the sale of the land. But he is not entitled to priority. For the lien in favor of the • Commonwealth, to which the sureties'are-entitled by-substitution, already existed when, he made the payment to Hays.

2. As Lee had no notice at the time he made the improvements on the land that Hays had defaulted .as sheriff, and they are shown .to have been necessary ■and made in good faith, we think he should be re-imbursed therefor out of the proceeds, of .the sale to the extent they be shown, to have increased the vendible value of the land before appellees Hill and Green-well are paid. , . .. , . . .

3. It appears .that, . included in ,the, amount with ■which Hays was. charged, as .sheriff by-- the Commonwealth on account of revenue..collected by.-Mm for the year 1880 was the .sum of $154.28 .taxes-assessed .and collected from. negroes in pursuance of an-act, entitled “An act tp.establish,-a .uniform system of common schools for the,.colored children of this.Commonwealth,” approved February 23, 18,74.-.....,.

If that act be,repugnant to .the Constitution of .-the-United States the sheriff was not authorized to collect *56any money in pursuance of it, nor required, after he did collect, to pay it into the State Treasury, because the Commonwealth of Kentucky was not entitled, to it, and having no right to it, the Commonwealth held no lien therefor which the sureties of the sheriff' could by substitution enforce against the land of Lee.

It has been held by the Supreme Court of the-United States that discriminating legislation - by a. State against any class of persons, or against persons-of a particular race or nation, in whatever form it may be expressed, deprives such class of persons, or persons of such particular race or nation, of -the equal protection of the laws, and is prohibited by the fourteenth amendment to the Constitution.

By section 1, article 11, of the State Constitution, the “Common School Fund” therein designated, together with any sum which may be raised in the State by taxation or otherwise for purposes of education, shall be held inviolate for the purpose of sustaining a system of common- schools.

If the rule adopted by the Supreme Court in all other cases involving the construction of the fourteenth amendment to the Constitution be applied in the matter of. the common school system of this State, it follows that State taxation for purposes of education should 'be provided for by general laws applicable to all classes and races alike, and that all the children of the State are entitled to an equal share of the proceeds of the “Common School Fund,” and. of all State taxation for purposes of education.

The object of the act in question, as declared therein, is to create a uniform system of common *57schools for the education of the colored children of the State; and the fund for that purpose is provided for by taxation upon the property and persons of the negro race exclusively.

It was obviously the intention of the Legislature, and such is the proper construction of the act, to-exclude the negro children of the State from any share of the proceeds of the “Common School Fund” set apart by the Constitution, as well as. from the annual tax levied under general laws on. the property of white persons for school purposes, and to give them the benefit of only the fund provided for in the special act. In this respect, as well as regards the partial and discriminating taxation, provided for, the act is, in our opinion, in violation of the fourteenth amendment to the Constitution of the United States, as interpreted by the Supremo Court.

Wherefore, the judgment is affirmed on the appeal of Dawson, and reversed on the cross-appeal of Lee, and cause remanded for further proceedings consistent with this opinion.