21 W. Va. 510 | W. Va. | 1883
announced the opinion of the Court.
This is an appeal from a decree of the circuit court ol Lewis county rendered, February 28, 1879, in a suit therein pending in which Joseph Matthews was plaintiff and Abraham E. Hall and others were defendants. The plaintiff filed his bill in said court, in July, 1875, and he alleges therein, that, on January 10, 1859, Abraham E. Hall, who had been previously elected sheriff of said county, in order to indemnify his securities on his official bond as such sheriff, together with John S. Hall who was to act as his deputy, conveyed to Henry Brannon, trustee, by deed dated January 4, 1860, three tracts of land, two of one hundred and fifteen and one hundred and forty acres, respectively, lying in said Lewis county, the property of said Abraham E. Hall, and the other of two hundred and thirty-eight acres, lying in Eitchie county, the property of said John S. Hall, which deed after reciting that George J. Arnold, Joseph Matthews, Ahraham Williams, Ezra Hall and Joseph Hall as sureties, did with said Abraham E. Hall and John S. Hall enter into and acknowledge a bond to the commonwealth of Virginia for the faithful discharge of their duties by the said Abraham E. Hall as sheriff and the said John S. Hall as deputy, conveyed said lands in trust to secure said George J. Arnold and Joseph Hall as such securities from any liability which said principal or deputy might incur by reason of said sheriffalty, and if any default should occur the said trustee was authorized to sell said lands to satisfy the same, and the balance of the proceeds of such sale to be held by said trustee “for the indemnity of any or all further liability or liabilities which may arise out of said sheriffalty;” that although the said trust deed was given to indemnify the said George J. Arnold and Joseph Hall, the plaintiff avers that by the rules of equity it enured to the benefit of all the sureties jointly; that during the term of office of said Abraham H. Hall as shei’iff as aforesaid, he incurred various liabilities, and amongst
The said Henry Brannon, trustee, the said Abraham R. and John S. Hall and their sureties aforesaid were made defendants to said bill, and the said defendants demurred thereto which demurrer was overruled. The said Abraham R. Hall having died intestate, his personal representative and heirs 'were by bill of revivor made defendants to this suit and served with process. And subsequently, an amended bill was filed against the administrator and heirs of -Jonathan Hall in which the plaintiff alleges that said Abraham R. Hall had sold to said Jonathan Hall a large portion of the lands conveyed to Ilenry Brannon, trustee, as aforesaid and that a part of the proceeds of said lands so sold was applied to tire payment of liabilities of said Abraham R. Hall, but that said Jonathan Hall is not entitled to substitution on account of said application of the proceeds of said sale as against the rights of the plaintiff.
Emmet J. O’Brien, administrator of said Jonathan Hall, deceased, filed his answer to said amended bill, in which he denied that the plaintiff had any right to resort to the lands sold by said Abraham R. Hall to his intestate.
The facts in the record show, that the plaintiff, as successor of said Abraham R. Hall, was sheriff of said county from January to July, 1861, and that as such sheriff he paid into the auditor’s office of Virginia two hundred and eighteen
It appearing, however, from the books of the auditor’s office of Virginia, that the plaintiff, in the manner aforesaid, has overpaid the amount charged to him by said sum of two hundred and eighteen dollars and sixty cents, and the claim against the said Abraham H. Hall having been by law traus-fered to the State of West Virginia, he, the plaintiff, or some one in his behalf, procured the passage of an act by the Legislature of the latter State, on February 1, 1873, allowing him as one of the sureties of said Abraham H. Hall credit on the debt due the State from said Hall, for the said sum of two hundred and eighteen dollars and sixty cents — Acts 1872-3, p. 76. That after-wards the said Hall, with the concurrence of the plaintiff, in a settlement with the agent of the State, was allowed a credit on his said indebtedness to the State for said two hundred and eighteen dollars and sixty cents and he paid the balance due from him to the State. This transaction is the foundation of the plaintiff’s claim to relief in this suit. Is he entitled to recover ?
What, if anything, has the plaintiff paid as surety for his principal Abraham R. Hall in this case ? The enquiry is, what amount will indemnify him for the actual sum he has paid or loss sustained, and not what amount of the debt of his principal he has extinguished. The fact that the plaintiff voluntarily paid money in discharge of a liability, either actual or supposed, to the auditor of Virginia, is prima facie .evidence, that he ivas indebted to that State for the amount so paid. If the money ivas paid by him by mistake the burden was on him to show the mistake and the extent of it. It is not pretended that he made a loan to said State. The most that can be claimed by him is that he made the overpayment of two hundred and eighteen dollars and sixty cents by mistake. Has he shown that there was any error or mistake in said payment ? The books of the auditor’s office are exhibited to prove that he lias been credited with two hundred and eighteen dollars and sixty cents more than he has
I am, therefore, of opinion that there is no error in the decree of the circuit court dismissing the plaintiff's bill, and that said decree should be affirmed with costs to the appel-lees against the appellant and thirty dollars damages.
Decree Affirmed.