State v. Wotring

56 W. Va. 394 | W. Va. | 1904

Beanhos, Judge :

In a suit in Preston county, Wotring was appointed a special' commissioner to sell lands to pay various debts on the terms of one-third cash and the balance in two payments in one and two* years, and the decree required him before acting to give a bond in the penalty of $3,000, conditioned according to law. He gave ■ the bond with Dawson and Eortney as sureties. The bond recites such appointment as special commissioner, and says: “Now, if said Wotring shall faithfully discharge his duties as-such commissioner, and account for and pay over, as required by law, all money which may come to his hands by virtue of the said office, then the above obligation to be void.” Wotring sold the land for $3,080, receiving the cash payment, and took fronii tbe purchaser two notes for balance of purchase. Wotring was-directed and authorized by the decree confirming tlie sale to collect the notes and pay their proceeds to the persons entitled under the former decree. He paid over the cash payment, and collected, but did not pay over, the money collected for the notes,, and Calhoun, who was, decreed a debt in the case, brought an action on said bond, in which the facts were agreed, and the-court gave judgment for the defendants, and Calhoun brought the case here. The decree which required the bond was the first decree, and the subsequent decree provided for no other or further bond. It did not limit the bond to any particular part ®f the sale proceeds.

The sole question is whether the bond covers the money arising from the notes given for the deferred purchase money, or only the cash payment. It is contended that this bond was intended to cover only the cash payment, and was so understood,, by the sureties; that Wotring had no authority by law to collect the notes, and that the sureties are not bound for them; that the /court ought to have required a second bond in the second decree, and that this omission cannot operate to charge the sureties. By no means can we agree to this contention. Section 1, chapter 132, Code, edition of 1887, the law at the time, demands a bond before sale. It prohibits a commissioner from receiving any mone^ before giving the bond, and in words prohibits him from making sale until a bond has been given. Neely v. Ruley, 26 W. Va. 686. Therefore, we cannot say that the law contemplates two bonds in case of sale for part cash, and part credit; but we can say that it requires a bond before sale, which ought to be provided f<3r in the decree of sale, and the bond is designed to cover all and any money arising from the sale* whether from an entire cash payment or part cash and part credit sale. It was decided that payment to a commissioner, who was required to give, but did not give, bond was not good, and the purchaser must again pay the money; and hence the change in the law demanding a bond before sale. The design is to protect the purchaser, creditor and debtor having any interests in the proceeds of sale — all the proceeds — and we find no warrant for limiting the protection intended by the statute to aüy particular part of the proceeds. The statute neither makes nor implies any such distinction. What reason to say that the statute does not intend to protect parties entitled to the money, whether it come from •cash or deferred payment ? The hurt of défalcation is the same. Why is not Calhoun, whose money was to come from the notes, .as much authorized to look to the bond as one whose money would come from the cash payment ? The statute does not provide for two bonds. The bond taken under a statute is to -be •construed by it, if its words will admit of it, as the statute is part of the bond. State v. Nutter, 44 W. Va. 385; 9 Cyc. 756. So much for the object, letter and import of the statute. Turn to the bond. Its contract and' covenant make no such limitation. It is broad. Ifr stipulates that tile commissioner shall faithfully discharge his duties, as required by law, and the law demands that he apply the money — any coming to him under the sale — as the decree requires. Not only this, but the letter of the bond is. that he shall account for and pay over “all money which shall come to his hands.” It recites that Wotring had been appointed to sell and “collect and disburse the proceeds arising from the'sale.” This means all the proceeds. Notice the words “all money.” No distinction is here made as to cash and credit moneys. It saj^s all moneys coming “to his hands by virtue of said office.” Did not this money come to his hands only as commissioner? It was by color of his office. Lucas v. Lock, 11 W. Va. 81, 89; Songster v. Com., 17 Grat. 131. It is a rule that the obligation of sureties will not be strained and stretched beyond the letter of the bond; (State v. Nutter, 44 W. Va. 385.) but we do not do this in this instance. The letter of the statute, its spirit and object, and the very letter of the bond bind them for all this money to the extent of the penalty of the bond. We ape told that as the farm brought more than the penalty, and it is not likely the court intended the bond to g© beyond tire cash payment, and the parties so understood, these circumstances indicate that the bond was intended to go no farther. Why talk about silent intent and understanding in the face of the words of the bond and the design of the statute? How can a court defeat the statute by guessing at the silent understanding? Such an understanding is not shown. If the design was to limit the bond to the cash payment, why did it not so provide? The decree made no such limitation in its requiremnt of the bond.

We reverse the judgment, and upon the facts agreed give judgment for the plaintiff. Reversed.