104 Ky. 579 | Ky. Ct. App. | 1898
delivered the opinion oe the court.
At the November election in 1894, Thomas Sheehy was elected sheriff oí Bracken county; and on the first Monday in January, 1895, he took the oath of office and exe» cuted the bond required by law. On June 6, 1895, Sheehy* as sheriff and collector of the county levy for the yean 1895, executed a bond to faithfully perform his duties as such; and on this bond the appellant, Fidelity and Deposit Company of Maryland, was accepted as surety. It appearing that he was indebted to the county on account of his collection of the county levy for the year named, this action was brought on the bond. The appellant seeks to avoid its liability on the bond upon grounds as follows: (1) That the County Court was not authorized to accept the bond which Sheehy executed with it as surety; (2) that he was sheriff of the county during tbe years 1893-94, and defaulted in the payment of certain sums to the county, and as the county judge- knew this fact, and failed to notify it, his conduct was a fraud upon its rights, which invalidated the bond.
This bond was executed under section 1884, Ky. Stat. (Act April 18, 1892), which requires a sheriff or other officer who may collect the county levy, before he proceeds to do so, to execute a bond to the Commonwealth of Kentucky, in the County Court, in a sum equal to double the amount of taxes likely to come into his hands, for a faithful performance of his duty, and to pay over in due time to the proper party, as directed by the court, all moneys collected by him. It appears that some, if not all, of the mo
It is claimed that the- act approved October 17,. 1892, in connection with the November act, repealed son
To sustain the second proposition, counsel for appellant • relies upon that principle of law which is to the effect, if a party taking a guaranty from a surety conceals from him facts which go to increase his risk, and suffers him to enter into a contract under false impressions as to the real state of facts, such concealment will amount to a fraud, because the party is bound to make the disclosure; and the omission to make it under such circumstances is equivalent to an affirmation that the facts do not exist. This principle of law is applicable to transactions between individuals, and between individuals and corporations, but does not apply to public officials. This is the effect of Com. v. Tate, &c., 89 Ky., 587, [13 S. W., 113]; Wade, &c., v. City of Mt. Sterling, 18 Ky. Law Rep., 377 [33 S. W., 1113]. The judgment is affirmed.
On February 7,1899, the following response to a petition for a rehearing was delivered by Judge Hazelrigg:
Since the decision of this case, we have had under consideration the question whether the bond executed under
. We also reached tbe conclusion that tbe aets, providing for various county levy bonds, including tbe act embracing section 1884, Ky. Stat., bad not been repealed. We need not repeat tbe reasons for our conclusion here. We have corrected the original opinion on its face to remove any seeming inconsistency with tbe Howard case.
It is true that in Schuff v. Pflanz, 99 Ky., 106, this court by Chief-Justice Pryor said: “The sheriff is required to give two .bonds — one for tbe collection of tbe revenue, and tbe other known as tbe general official bond.” • But tbe subject matter of inquiry there was, tbe bonds required of tbe sheriff for tbe failure to execute which tbe office might be declared vacant. And tbe only such bonds so required are tbe two referred to in that case.
Petition overruled.