80 A. 891 | Md. | 1911
This suit was brought in the name of the State of Maryland, for the use of Cora J. Gaver, guardian, against the appellees as sureties on a bond alleged to have been given by them, and the appeal is from a judgment in favor of the defendant on a demurrer to the declaration.
The first count of the narr. alleges that the said Cora J. Gaver was appointed guardian of Grace M. Main and others by the Orphans' Court of Frederick County on the 21st of January, 1903, and that she duly qualified as such guardian; that on the 23rd of March, 1905, she transferred to Joseph W. Gaver, "as custodian and holder for her", the sum of twenty-five hundred dollars, and that on the same day the said "Joseph W. Gaver, as principal, and Harmon L. Gaver and Frederick W. Obenderfer, as sureties, executed under their hands and seal" the following bond:
"MARYLAND, Sc.:
"Know All Men By These Presents, That we, Joseph W. Gaver, Harmon L. Gaver and Frederick W. Obenderfer, of Frederick county, are held and firmly bound unto the State of Maryland in the sum of five thousand ($5,000) dollars, current money, to be paid to the State aforesaid or its certain attorney, to which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents.
"Sealed with our seals, and dated this 23rd day of March, in the year of our Lord one thousand nine hundred and five.
"The condition of the above obligation is such, that if the above bounden Joseph W. Gaver, as custodian and holder of the sum of twenty-five hundred dollars ($2,500) for Cora J. Gaver, Guardian to Grace M. Main, Oscar C. Main, Nannie N. Main, Roy E.G. Main, and Melvin J. Main, heirs and representatives of Jonathan C. Main, late of Frederick county, deceased, shall faithfully account with the Orphans' Court of Frederick County, Maryland, as directed by law, for the management of the property and estate of the infants under her care, and also shall deliver up said property, agreeably to the order of the said Court, or the directions of law, and shall in all *253 respects perform the duty of custodian and holder of the funds of said Guardian to the said Grace M. Main, Oscar C. Main, Nannie L. Main, Roy E.G. Main and Melvin J. Main, infants as aforesaid, according to law, then the above obligation shall cease; otherwise it shall remain in full force and virtue."
This count further charges that the said Joseph W. Gaver died intestate on the 14th of November, 1909; that the Orphans' Court of Frederick County, on the petition of the said Cora J. Gaver, guardian, passed an order, on the 21st of December, 1909, requiring the defendants and the administrators of the said Joseph W. Gaver to deliver said sum of $2,500 into Court to be paid to her, and that a copy of said order was duly served on the defendants and on said administrators, but that the defendants failed and refused to deliver up said sum of $2,500 as required by said order.
The second count, after alleging that the said Joseph W. Gaver, now deceased, and the appellees "entered into and executed" the bond set out in the first count, charges that the appellees by said bond "obligated themselves * * * for the performance in all respects of the duty of the said Joseph W. Gaver as custodian and holder of the funds; that it was the duty of the said Joseph W. Gaver as custodian and holder to pay over and deliver to said Cora J. Gaver, guardian, when demand was made therefor; and, demand having been made and refused, it then became and was the duty of" the appellees, "under the terms of said bond, to deliver and pay" said fund to said Cora J. Gaver, guardian, but that the appellees failed and refused to pay same.
As the bond sued on is set out in and made a part of both counts of the declaration, the first question to be determined is: Can a suit be maintained on it against the sureties? It is not an official bond, or one required by law to be given. It was not executed for the protection of the State, but for the benefit of Cora J. Gaver, guardian. The State, therefore, has no interest in the bond, and it is conceded that there is no statute authorizing such a bond to be made payable to the State. *254
In the case of Kiersted et al. v. The State, 1 G. J. 231, the bond was executed to the State of Maryland by an applicant for the benefit of the insolvent laws. The statute required the bond to be given, but did not authorize it to be taken in the name of the State, and it was contended that the State could not, therefore, maintain a suit on it. The Court, in disposing of this contention, said: "The first and chief question arising out of them is a consideration whether actions can be maintained on these obligations, inasmuch as they have been taken in the name of the State of Maryland, and no express authority is given by law so to take them.
"The Act of 1805, ch. 110, is the first general insolvent law enacted in this State, to which there have been many supplements; and since then various insolvent acts to suit the situation of the City and County of Baltimore have been passed. All have been examined by the Court, as well as some in favor of individuals, before and since 1805. In none of those acts is there any specific provision for taking these bonds of the insolvents in the name of the State, although by the Act of 1805, and several other acts, the Courts, judges and commissioners are to take of the imprisoned debtors at the time of their discharge bonds conditioned for their appearance to answer the allegations of their creditors, in penalties to be prescribed, and with security to be approved of by them. Notwithstanding, the manner of taking these bonds is no where specifically directed; we are assured upon full enquiry that they have been invariably passed to the State of Maryland for more than twenty years past, whether taken by the Courts, the judges or the commissioners of insolvent debtors for the City and County of Baltimore. What has produced this uniformity, it is not easy to say, unless it has been brought about by implicity following the example of the Courts and judges, upon whom it first devolved to execute these Acts of Assembly. As no person was designated in whose name the bonds were to be given, it is probable the Courts and judges were prompted to the course pursued by the consideration, that the law in *255
this particular could not be executed, without an obligee was supplied by them, and by reflecting that for permanency and convenience none could be selected, more suitable than the State itself, to which all official bonds were given, and other kinds of bonds where a multiplicity of persons are concerned. And it may be that they were conducted to this resolution by reasoning upon the supposed intention of the Legislature that these bonds should be taken in the name of the State, from the fourth section of the Act of 1805, ch. 110, which directs the trustees of insolvents to give bond to the State. Whatever may have led to the practice, its consistency fully established the cotemporaneous construction of the first act in this system of laws, and we think it has too long obtained to be at this time shaken and disturbed. And we further think that to promote the execution of similar legislative provisions it may be well received as a settled rule for the government of our Courts of justice, that obligations in which many persons are interested, be taken in the name of the State of Maryland whenever the law is silent in naming the obligees to whom they are to be given." In the case of Ing v. State,
These cases hold that where a bond is required by law, and the statute does not specify to whom it shall be made payable, it may, where many persons are interested, be taken in the name of the State, and that suit may be brought on it by those for whose protection it is required, without obtaining the authority of the State for that purpose. In such cases the party for whose use the suit was brought is regarded as the real plaintiff, although, strictly and technically speaking, the State is the plaintiff. But we have been unable to find any authority for the proposition that the State may, without its consent, be made the obligee in a bond in which it has no interest and which is not required by law to be executed. In the case of United States v. Pumphrey, 11 App. Cases, 44 (D.C.), the bond was given to the United States and *257 approved and accepted by the Commissioner of Indian Affairs for the faithful performance of contracts of one of the obligors with certain Indians. The Court, after holding that notwithstanding the bond was not required by any statute, the United States may, "as a body politic, within the sphere of the constitutional powers conferred upon them and through the instrumentality of the proper department to which these powers are confided, enter into contracts not prohibited by law, when appropriate to the just exercise of those powers," said: "It may be conceded, however, that if the United States had no special power of supervision and control over the privileges and interests of these Indians, as such, the bond would be invalid; for the United States can not assume guardianship of an individual and make contracts concerning his private affairs that they may enforce, or that he, even, might enforce for his own benefit, as can be done, in some instances, by a third person, in the case of a contract made between others for his express benefit, or to which he may, in some proper manner, be privy. It follows, then, that the right of the United States to recover, by virtue of this bond, either to the extent of their own damage incurred in the return of the Indians to their reservation, or for the benefit of the Indians themselves, to the extent of the special damages sustained by them through the breach of their contracts as named in the bond, must depend upon the nature of the relations of said Indians to the Government, its powers of control over and its duties and obligations to them." And in the case of State v. Shirley, 1 Irer. 597 (N.C.), suit was instituted in the name of the State of North Carolina at the relation of one Braddy on a constable's bond. The Court held that the constable had not been lawfully appointed; that the magistrate who received the bond had no authority as such to accept it, and that there could be no judgment at law upon the bond. JUSTICE GASTON, in that case, after referring to cases "in which, without evidence of formal acceptance, obligations made directly to a State, or to the United States, for the payment of money or the performance of other *258 duties due to them in their corporate capacity, have been upheld as bonds on the ground of presumed acceptance," said: "The instrument before us does not profess to be made for the benefit of the State as such. It is avowedly made to secure the interests of all persons who shall entrust the defendant Shirley with the collection of debts, and made to the State as a trustee for these persons. True, the State may be said in common parlance to have an interest in the faithful performance of these duties, because the performance of them is for the advancement of right. But the State has not an interest therein in its proper characteras a State. If individuals may, without permission, thus make the State their trustee, what limit can be set on the exercise of this liberty? Why may not everyone — every firm — every voluntary association — every corporate body — nay, every foreign State — should they choose — take engagements for the protection of their interests in the name of the State? If this be done, is it not manifest that the State may become involved in responsibilities and duties, wholly alien from the legitimate purposes of government, and its honored name may be bandied about in the contests of private litigants, like the John Doe and Richard Roe in an action of ejectment?"
Independent of the question of the right of individuals to make the State, without its consent, the obligee in bonds executed for their private ends, there is a more serious objection to the instrument sued on in this case. Every bond, in order that it may be a binding obligation, must not only be executed by the obligors but must be delivered, and it must be accepted by the obligee. Bac. Abr., Obligations C. Statutory or official bonds made payable to the State can not become effective until they are accepted by those duly authorized to accept them. Where they are made payable to the persons for whose protection they are required, the approval and filing takes the place of delivery, and the assent of the obligee is not required. It is said inMurfree on Official Bonds, section 46, that where a bond is made payable to the State, "not to subserve any interest of the State, but as trustee for *259
others," the bond "does not become operative at all until it has been duly accepted by the State acting through its appropriate and duly accredited agents." In the case of State v. Shirley,supra, the Court said: "But the magistrate who received this bond in behalf of the State acted wholly without authority. He not only had no express delegation of power to take it, but he was acting altogether without his official sphere in relation to the subject-matter. His acceptance of the instrument imparted to it no more validity, than it would have received from the acceptance of any, the humblest, individual in the land." In the case of Harris v. Register,
It appears, however, from the allegations of the narr. and from the terms of the bond that Joseph W. Gaver received from the equitable plaintiff the sum of $2,500, which belonged to her as guardian of Grace M. Main and others, and that the bond was given to secure the payment of said sum to the guardian. Under such circumstances the bond should have been made payable to the guardian, and was no doubt intended to be so made, as it was evidently given to secure to her a sum for which she was bound to account. If it was the intention of the obligors and the guardian to have the bond made payable to her, and through the mistake of the draughtsman it was given to the State as obligee, and it was delivered to the guardian, or to some one for her, and she accepted it, believing that it was payable to her, there is no reason why, upon a proper bill filed, a Court of equity could not correct the mistake, reform the bond so as to make it conform to the intention of the parties, and enforce it against the obligors. In the case of Coke v. Husbands,
In the case of Smith v. Allen et al.,
It follows from what we have said that there was no error in the ruling of the Court below on the demurrer, and that the judgment appealed from must, therefore, be affirmed.
Judgment affirmed, with costs.