State ex rel. Rice v. Cayce

85 Mo. 456 | Mo. | 1885

Hexstet, C. J.

This is an action against Cayce et al., .as sureties on the official bond of W. S. McMullin, as sheriff of St. Francois county, to recover $1,210, with interest and statutory damages. The money was received by said sheriff on a sale of lands in a partition proceeding, the order of sale requiring ten per cent, of the purchase money to be paid in cash, and the residue in twelve months. The sale was made the nineteenth of May, 1880, and ten days thereafter, Patterson, the purchaser, paid for the land the $1,210 bid by him, and received a deed from the sheriff. The receipt of the money at that time, was by agreement between the parties entitled to it, and the sheriff and Patterson, and it is. contended by the defendants, and so the court declared, that the sheriff did not receive the money in his official capacity, but as the agent of the plaintiffs, except as to Lewis Delassus, a minor. In this we think the court erred.

The sheriff had no authority to receive the money, . except as sheriff. The agreement between him and the parties was not his authority for receiving the money, but only constituted an excuse for not strictly complying with the terms of the order of sale. Nor do we agree with the court that Lewis Delassus was not bound, equally with the others, by the agreement made ■ on his behalf by his duly appointed guardian. Section 334-6, Revised Statutes, provides that: “The guardians and the curators of the estates of minors and persons of unsound mind, appointed according to law, are hereby authorized, in behalf of their respective wards, to do and perform any matter or thing respecting the division of any lands, tenements, or hereditaments, as herein directed, which shall be binding on such ward and deemed as valid to every purpose, as if the same had been done by such ward after his disabilities are removed.”

The institution of this suit was a demand of the money, and plaintiffs were entitled to damages, at the rate of five per cent, per month from that time, in addition to interest. Sections 2403 and 3378, Revised Statutes. Section 2403 provides, that if an officer collect money -under an execution and does not pay the same according to law, he shall be liable to the person entitled thereto, with interest, and damages at five per cent, per month from the date of such demand, to be recovered by civil action, or by motion against the officer and his sureties, in the court before which such suit is returnable. Section 3378 provides that “the sheriff and his sureties shall be responsible on his official bond for his acts, in all cases under this chapter, and for the notes, bonds or money collected or received by him, and he may be compelled to account for and pay over the same, in the same manner as in cases of money collected on execution.”

This latter section is found in the chapter relating to partition. Until demand, the five per cent, per month' penalty or damages does not begin to run, but the institution of a suit is a demand, and the sureties, if they see proper, can then pay the money and escape the penalty.

The judgment is reversed and the cause remanded.

All concur.