49 Mo. 236 | Mo. | 1872
delivered the opinion of the court.
The material question that arises in this case regards the action of the court in sustaining the motion to strike out the replication. It appears from the record that Bently and Easter as principals, and Barr as surety, executed to the county of Ray their bond in consideration of a loan of school money. Bently and Easter also made and executed a mortgage on real estate, with the usual statutory power of sale, to secure the payment of the debt. Default being made in the payment of the principal and interest, the County Court of Ray county ordered the mortgaged premises to be sold, and, when the same was put up, authorized the county clerk to bid thereon.
The clerk bid the amount of the principal and the interest on the debt, and the property was struck off to him for the county on whose behalf he assumed to act. Immediately afterward the court, being of the opinion that it had no power to purchase the property in the name of the county, set aside the order of sale, and ordered the sheriff to proceed and re-sell.
At the second sale, Barr, the surety, bid in the property at a price considerably less than the amount of the debt and interest, and this action was brought to recover the residue.
The answer of the defendants stated that the property was sold, and that the plaintiff bid in the same for the full amount of the principal and interest, and alleged that that was a complete satisfaction of the debt.
The replication averred as new matter the proceedings of the County Court in setting aside the first sale, the re-sale by the sheriff and the purchase by Barr, when the property was re-sold. This replication, on motion, was stricken out.
The essential question raised by the replication, and which must be determined in this case, is whether the court possessed the power to buy in the land in the name of and for the use of the county. The money for which the debt was contracted and the mortgage was made belonged to the school fund, and was not the property of the county.
The statute provides that the County Courts, respectively, shall
In all cases of loan the bond is made payable- to the county for the use of the township to which the fund, belongs. {Id.,.
The principle is well settled that a corporation can exercise only such powers and employ such agencies as its charter may permit. But counties have not the powers of corporations in . general. They are merely quasi corporations, political divisions df the State, and they act in subordination to and as auxiliary to the State government. (Hann. & St. Jo. R.R. Co. v. Marion County, 36 Mo. 303; State v. St. Louis County Court, 34 Mo. 546; Barton County v. Walser, 47 Mo. 189.) They have no power to purchase land or hold the same unless it is given to them by statute. Nor have they authority to assume the exercise of this right, in a case like this, by implication. For obvious reasons the law never intended that the County Court should buy in real estate for the county to satisfy a school debt.
The county is not the creditor, and it has no right to bid in the property and undertake to manage it for the benefit of the school fund. The County Court is not a fit or appropriate body to deal as a real estate agent, and whenever the principle is established the school fund will inevitably suffer.
There is no force in the argument so strenuously advanced, that if this power of purchasing real estate is denied to the County
But it is contended further that Barr, the surety, is released because he has suffered injury by the action of the County Court in bidding in the property; that during the time intervening between the first and second sale the property decreased in value and greatly deteriorated. The established rule, that a surety will be discharged whenever the creditor commits acts which operate to his injury or disadvantage, cannot apply in this case.
In Marion County v. Moffett, 15 Mo. 604, it was held that the failure of the County Court to take a mortgage in fee on real estate free from all liens and encumbrances, to secure the payment of school money loaned, as required by the statute, did not discharge the surety. It was said in that case: “ The school lands were vested in the State, in trust for the benefit of the inhabitants of the township in which they are respectively situated. The State vested in the County Courts the management of this trust. Those 'courts are the agents of the State for this purpose.” The principle that the State is not affected by the laches of her agents was sanctioned by this court in the case of Parker v. State, 7 Mo. 194. So in the case of a corporation, where the acts or omissions
With the concurrence of the other judges, the judgment will be reversed and the cause remanded.