110 Ky. 112 | Ky. Ct. App. | 1901
Opinion of the court by
Affirming.
On February 27, 1893, J. J. Fitzpatrick was appointed master commissioner of the Letcher Circuit Court, at which time he executed a bond as commissioner in the usual form> with the appellants as sureties. . At the August term, 1895, the court required him to execute another bond, upon which George Hogg and others became sureties, each of which bonds was accepted) and approved by the court. At November term, 1895, in an action then pending in the Letcher Circuit Court, wherein R. G. Ramsey was plaintiff and M. J. Holt and others defendants, a certain tract of land' was ordered to be sold on a credit of six and twelve months, bonds for the purchase money to be taken payable to Fitzpatrick, commissioner, to have the force and effect of a judgment. It is averred- in the petition that there was an order authorizing Fitzpatrick to collect the money due on the bonds. He collected the money but failed to account for part of it, and this action is -brought to recover the unpaid balance. The only defenses made by Moses Tson to which we deem it necessary to advert are: First, the averment of his answer that there was an order of court ordering the commissioner to collect the money, and that he collected it without authority; second, that it was the duty of the court to have required a renewal of his bond annually, and, as it was not done (not having taken one in 1894), the sureties on the first bond were released, as their liability was increased by reason of the failure of the court to so -take a bond annually.
The second question arises: Has the master commissioner the right to collect bonds, without an order of court directing him to do so, which were executed for the purchase money of land sold under judgment of court, payable to him? The question as to the authority of a master commissioner to collect money without an order of the court was involved in the case of Rankin v. White, 3 Bush, 545. In that case the court had directed its commissioner to loan a fund in court, who took the borrower’s bond therefor with surety. The surety resisted payment on the ground that the bond was executed to operate as a replevin bond, and that, no execution having been issued on it for more than a year after it became due, he was released) by section 11, c. 97, p. 100, Revised Statutes, which provides that a surety in a bond having the force of a judgment shall be released when there is a failure for one year to have execution issued. The court held that that provision did not apply to judicial bonds, the collection of which by execution rule, or attachment must be controlled by the court alone as to the time and manner of enforcement. In the case of Turner v. Rankin, 80 Ky., 179, the same question was involved, as the facts were substantially the same; and, while the court in the latter case held the sureties were released, it reaffirmed the doctrine of Rankin v. White in so far as it held the collection of the bond was under the