Knox County v. Goggin, 105 Mo. 182

105 Mo. 182 | Mo. | 1891

Black, J.

This is a suit by Knox county to the use of the swamp-land fund against Goggin and the Connecticut Mutual Life Insurance. Company to foreclose a mortgage executed by Goggin, and to set aside a satisfaction of the mortgage made by the deputy county clerk. The circuit court postponed the county mortgage to a deed of trust held by the defendant company of a subsequent date, and then decreed a foreclosure of both instruments. From that decree the plaintiff and the defendant Goggin appealed.

On October 12, 1875, Goggin executed his bond in the sum of $500, payable to the county in one year, for the use of the swamp-land fund, with interest at the rate of eight per cent, per annum, and secured the same by a mortgage on one hundred and twenty acres of land. On January 4, 1884, he delivered to E. D. Brown an application in writing setting forth a desire to borrow $600 on the land. By the terms of this application Goggin appointed R. B. Wade, his attorney, in fact, to procure the loan from any person or corporation, and agreed to pay the expenses of an abstract, the fees for recording the mortgage to be given, and a commission of five per cent, on the sum borrowed. This application contains this further clause: “I hereby authorize and empower E. D. Brown, my agent, to draw all drafts on Robert B. Wade, at St. Louis, Missouri, for the purpose of closing said loan, or to pay off and discharge of record all and every incumbrance of whatever kind or nature found to be a lien or cloud on said premises, and to deduct the required amount, together with all expenses and compensation, from the amount borrowed, hereby ratifying and confirming all that my said attorney may do in the premises as fully as if done by myself.”

Wade resided in St. Louis, and Brown was a loan agent at Edina, in Knox county. Brown examined tlie land and then sent his report and the foregoing application to Wade, who negotiated a loan with the insurance company. To perfect this transaction it became necessary to satisfy the county mortgage, and to that end Brown advanced the money and paid it over to Bunce, the deputy county clerk, who entered satisfaction of the mortgage upon the margin of the record thereof, and delivered the bond and mortgage to Goggin. Thereupon Brown caused the deed of trust from Goggin and wife to the defendant company to be recorded, and procured the certificate of an attorney to the effect that Goggin was the owner of the land and that it was free from incumbrances, and forwarded the same to Wade, who paid Brown’s debt for the money borrowed' from the company, and the latter reimbursed himself for the money paid the deputy clerk.

Bunce received the money from Brown on January 28, 1884, and on the next day he paid to the county treasurer $50, as interest on the county mortgage, the prior interest having been paid by Goggin, but he kept the principal of $500 paid to him by Brown, and accounted to the treasurer for no part of it. The evidence shows a practice in Knox county of fifteen or more years’ standing, by which the clerk, or the county court, satisfied school mortgages without any general or special order of the county court, and in a few instances the clerk made such entry of satisfaction without first procuring a receipt for the money from the treasurer. The satisfaction was made in the present case by the deputy without any order of the county court and without a treasurer’s receipt. The county made no demand of Goggin for the principal or interest due on the bond in question until some three years after the deputy clerk had received the money from Brown.

Though the bond and mortgage were made to the county for the use of the swamp-land fund, still it seems to be conceded on all hands that the money borrowed by Groggin from the county had become, and was a part of the county public school fund. The first question which arises is whether the deputy county clerk had any authority conferred upon him by law to collect the money due upon this bond, and this question is to be determined by the laws relating to the collection of school funds. Section 7105, Revised Statutes of 1879, relied upon by the defendant company, taken by itself, would furnish to the county clerk the authority claimed ; for it provides that “the county clerk shall collect, or cause to be collected, the fines and penalties and all other moneys for school purposes in his county, and pay the same over to the county treasurer, on account of the public school fund.”

But this section must be read in connection with the other sections, and its general language limited by the more specific provisions. Subsequent sections specify what provisions and conditions every mortgage taken as security for school money loaned shall contain and point out the method of enforcing such mortgages ; and section 7114 is in these words : “ When any portion of the principal or interest, or both, may be collected as prescribed in any of the foregoing sections, fit shall be paid into the county treasury ; and it shall be the duty of the treasurer to give the person making payment thereof duplicate receipts, specifying- the sums paid, and on what account. One of said receipts shall be given to the clerk of the county court, who shall file and preserve the same in his office, charge the treasurer with the amount, and credit the payment to the party on whose account it is made, on his bond and mortgage.”

This section makes it the clear duty of the mortgagor to pay the money to the county treasurer and then present the duplicate receipt to the county clerk. Hence it was held in the case of State ex rel. v. Moeller, 48 Mo. 331, that it was not the duty of the county clerk to collect the proceeds arising from the sale of swamp lands, or from the sale of the sixteenth section. That was a suit on the bond of the county clerk, and it was held that the clerk and his sureties were not liable on his bond for such moneys, because it was not part of the duties of the clerk to receive the same. Says the court: “We cannot make him a county treasurer, or collector proper, without nullifying other provisions of the statute and throwing into confusion our whole system of county finances.” The case just cited and State to use v. Bonner, 72 Mo. 387, set at rest the questions in hand, and show that the county clerk had no authority to collect the money due upon this bond and mortgage. It also follows that his deputy had no such authority. When Brown gave the money to the deputy clerk, he made the deputy clerk his agent for the purpose of paying off that debt, and the county is in no way responsible for the misconduct of the deputy in not applying the money as directed, for the deputy in receiving the money was not acting within the scope of his duties, but outside of them.

Other sections of the statute make it the duty of the clerk of the county court to keep regular accounts between the treasurer and the county ; and, in view of this fact, and the further fact that the county treasurer had no authority to acknowledge satisfaction of a school-fund mortgage, it is argued that the clerk must possess that power. Prior to the revision of 1889, the statutes did not in terms provide what officer should acknowledge satisfaction of these mortgages. But the statute did make the county clerk the custodian of the securities, and, on presentation of the treasurer’s duplicate receipt, he was required to charge the treasurer with the amount, and credit payment to the party on whose account it was made on the bond and mortgage. The credit thus given, when in full payment, necessarily operated as a satisfaction of the mortgage. The marginal satisfaction is no more than additional evidence of payment. The clerk might give such additional evidence of payment by order of the county court; but, without such order, he had no such authority. The treasurer’s duplicate receipt was his warrant for crediting the party making payment, without which he had no power to make the credit, much less any power to acknowledge satisfaction of the mortgage. The duties of these county officers are prescribed by law, and it was the duty of the defendant insurance company, and others dealing with the land, to see that the money had been paid into the county treasury.

But it is further insisted that, if the statute did not give the clerk authority to acknowledge satisfaction of the mortgage, still the county should be held bound by his act in this case, because of the long-continued practice of the clerk of Knox county to exercise that power. The first answer to this argument is that a practice on the part of county officers at variance with the plain meaning of the law cannot be sustained as a construction of the law. To hold otherwise is to say a general statute law may receive different interpretations in different counties, a doctrine which we do not approve. A mere local usage cannot be invoked to construe a general enactment, even for the locality. Endlich on Interp. of Statutes, secs. 361, 362. Again, the clerk had no authority even to credit the bond and mortgage with payment until presentation of the treasurer’s duplicate receipt. The entry of satisfaction by the deputy clerk was made without any warrant of authority whatever, and in no manner binds or estops the county. In order to foreclose the mortgage, it is not even necessary that this unauthorized entry should be set aside. It follows, from what has been said, that the county has the prior lien, and the court erred in postponing that lien to the deed of trust of the insurance company.

The defendant Goggin insists on his appeal that he ought not to be made liable for both mortgage debts. It follows, from what has been said, that he is still liable upon tlie county mortgage. This being so, he denies any liability for the payment of the debt to the defendant company, and, in support of this claim, he takes the ground that Brown was not his agent, but was the agent of the company. Brown was not in communication with the company. He was a local loan agent, making loans through his business connection with Wade, of St. Louis. It was to Brown that Goggin made the application for the loan, and in that application he, in express terms, appointed Brown his agent to draw drafts on Wade for the purpose of closing the loan, and for the purpose of paying off and discharging incumbrances on the land. There is no claim that Brown did or was to receive any compensation from the company. We cannot see that there is any foundation whatever for the assertion that Brown was the agent of the company. He was the agent of Goggin, certainly, for the purpose of paying off the incumbrance, and it was the failure of Brown to pay the money to the proper officer, that has led to this controversy. What rights Goggin may have as against his agent Brown, we need not say, for that question is not before us ; but we hold that the deed of trust to the insurance company is a valid lien on the land, subject, however, to the mortgage to the county.

The defendant Goggin makes the further claim that the petition should be dismissed, because the evidence does not support the charge that he, Bunce, Brown and the insurance company made a fraudulent combination for the purpose of obtaining the release. This averment and the other averment of things done in execution of the alleged combination are not proved, but it does not follow from this that the petition should be dismissed. The petition is also based upon the theory that the deputy county clerk had no authority to receive the money or make the alleged satisfaction of the mortgage, and this ground for relief is sustained by the law and evidence. It, therefore, makes no difference that plaintiff failed to prove all the averments of the petition.

Some other points are made on the one side and the other, but they do not affect the merits of the case, and are overruled.

The judgment is reversed, and the cause remanded for further proceedings, in conformity with this opinion.

All concur.