{
  "id": 8657339,
  "name": "State ex rel BOARD OF COMMISSIONERS v. J. D. SUTTON et als.",
  "name_abbreviation": "State ex rel. Board of Commissioners v. Sutton",
  "decision_date": "1897-02",
  "docket_number": "",
  "first_page": "298",
  "last_page": "301",
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    "id": 9292,
    "name": "Supreme Court of North Carolina"
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      "cite": "118 N. C., 888",
      "category": "reporters:state",
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      "category": "reporters:state",
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      "cite": "106 N. C., 567",
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  "last_updated": "2023-07-14T18:07:11.774475+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "State ex rel BOARD OF COMMISSIONERS v. J. D. SUTTON et als."
    ],
    "opinions": [
      {
        "text": "ClaeK, J.:\nThe Code, Section 2073, prescribed that the Sheriff shall execute three several boDds, payable to the State. (1) \u201cOne conditioned for the collection, payment and settlement of the county, poor, school and special taxes.\u201d (2) \u201cFor the collection, payment and settlement of the public taxes.\u201d (3) \u201cFor the due execution and return of process, payment of fees and money collected and the faithful execution of his office as Sheriff.\u201d This latter is commonly known as the \u201cprocess\u201d bond.\nThe first of the foregoing bonds covers the taxes levied for school purposes, whether school taxes are State or county taxes, and its conditions should have included the collection, payment and settlement of \u201ccounty, poor, school and special\u201d taxes The draftsman in drawing the \u201ccounty\u201d bond, instead of enumerating these four funds, which should be embraced in its conditions, inserted only this condition: \u201cIf the said James D. Sutton shall well and truly pay over to those entitled by law to receive the same the county taxes due to said county.\u201d Many losses having accrued to the public by inadvertence and omissions as to the conditions of such bonds, the legislature of 3 842 enacted the provision, which, with some amendment, is now embraced in The Code, Sec. 1891, which provides that the bond, \u201cnotwithstanding any * * * variance in the penalty or condition of the instrument from the provisions prescribed by law, shall be valid and may be put in suit in the name of the State for the benefit of the person injured * * * as if the penalty and condition of the instrument had conformed to the provisions of law.\u201d The defendants when they signed said \u201ccounty\u201d bond were fixed by law with notice that the Statute required that bond to cover \u201ccounty, school, poor and special\u201d taxes, and the omission of the words \u201cschool, poor and special\u201d did not contract or abridge their responsibility, which is the same as if those words had been properly inserted. There is no doubt which of the three bonds required of a Sheriff the defendants signed. It ivas the bond for \u201ccounty\u201d taxes. It is also clear that such bond, if properly written, covered \u2018\u2018school, poor and special\u20195 taxes, and the Statute supplies those words which were omitted from the condition in the bond. This has been repeatedly decided. Kivett v. Young, 106 N. C., 567; Joyner v. Roberts, 112 N. C., 111; Daniel v. Grizzard, 117 N. C., 105; Warren v. Boyd, at this term; Shuster v. Perkins, 46 N. C., 325. Possibly in taking the bond, only the word \u201ccounty\u201d was inserted, under an impression that, exvitermini, that covered school taxes, as had been held under a former Statute in Lindsay v. Dozier, 44 N. C., 275.\nIt is immaterial whether the school fund is, strictly speaking, State taxes, or county taxes, or partly both. They are included in the \u201ccounty\u201d bond and the Sheriff must account for them in settling his liability on that bond. Tillery v. Candler, 118 N. C., 888. The case of Governor v. Crumpier, 12 N. C., 63, relied on by defendants, simply holds that the sureties on the \u201cprocess\u201d bond are not liable for default as to county taxes, which is true now, as it was then. Eaton v. Kelly, 72 N. C., 110, and cases there cited, were before the act amending The Code, Sec. 1883, and are not in point.\nThe Code, Sec. 2563, made the county commissioners the proper relators in an action on the Sheriff\u2019s bond to compel a settlement of the school taxes. The Acts of 1889, Ch. 199, substituted the County Board of Education as re-lators (Board of Education v. Wall, 117 N. C., 382), but Acts of 1895, Ch. 439, abolished the County Board of Education and again made the county commissioners the proper relators. Tillery v. Candler, 118 N. C., 888.\nNo Error.",
        "type": "majority",
        "author": "ClaeK, J.:"
      }
    ],
    "attorneys": [
      "Messrs. A. J. Loftin and George Rountree, for plaintiffs.",
      "Messrs. N. J. Rouse and R. 0. Burton, for defendants (appellants)."
    ],
    "corrections": "",
    "head_matter": "State ex rel BOARD OF COMMISSIONERS v. J. D. SUTTON et als.\nA ction on Sheriff\u2019s Bond\u2014 Official Bonds\u2014 Condition \u2014 Sureties.\n1. Although Section 2073 of The Code prescribes that one of the bonds\nrequired to be given by the Sheriff of a county must be conditioned for the settlement of the \u201c county, poor, school and special taxes,\u201d yet where the bond given by a Sheriff was conditioned for the settlement of the \u201c county taxes due to said county,\u201d the omission of the words \u201c poor, school and special\u201d did not contract or abridge the liability of the sureties for the Sheriff\u2019s default as to school taxes, since, under Section 1891 of The Code, the bond may be put in suit for the benefit of the person injured, notwithstanding any variance in the penalty or condition of the instrument from the provisions prescribed by law.\n2. The \u2018 \u2018 county \u201d bond of a Sheriff is liable for any school taxes, whether belonging to the State or county school fund.\n3. The Board of County Commissioners are the proper relators in an action against a defaulting Sheriff to compel the settlement of school taxes.\nCivil aotioN, beard on complaint and demurrer, before Ooble, -/., at November Term, 1896, of LeNoir Superior Court.\nThis action was brought to recover of the defendant, J. D. Sutton, Sheriff, and the other defendants, as sureties on bis bonds, the sum. of $3,098.76, a portion of the school fund, levied by the State under the general law for school purposes, to be expended for common school purposes in said county, and collected by the defendant, Sutton, as Sheriff of Lenoir county, during his term of office, commencing on the first Monday in December, 1892, and ending on the 21st day of January, 1895, at the time his successor was legally appointed.\nIt was admitted that the defendant, Sutton, executed during his said term of office three bonds, viz.: The bond upon which this action is brought, and for the collection and payment of the public taxes, and what is known as the process bond.\nThe taxes iu suit w ere levied by the State for school purposes. All taxes levied by the county for school purposes and for other purposes and all law taxes levied by the State other than the school tax in suit had been duly paid by the defendant Sheriff to the persons entitled in law to receive the same.\nThe bonds on which suit was brought were conditioned for the settlement of \u201cthe county taxes due to said county. \u201d\nThe defendant sureties demurred to the complaint, \u2018 \u2018because it does not set forth facts sufficient to constitute a cause of action against them in this:\n\u201cFirst. For that the said action is brought and instituted to recover an alleged balance due on the School Fund, and it is not alleged in the complaint that these defendants ever ei ecuted any bond or bonds to cover the said shool fund.\n\u201cSecond. For that the conditions of said bonds set out in the complaint cover and protect only the \u2018county taxes due to said county,\u2019 and the default set out and alleged in the complaint, to-wit, the non-payment of an alleged balance due on the school fund is not covered and protected in the conditions of said bonds or either of said bonds.\u201d\nThe demurrer was overruled and defendants appealed.\nMessrs. A. J. Loftin and George Rountree, for plaintiffs.\nMessrs. N. J. Rouse and R. 0. Burton, for defendants (appellants)."
  },
  "file_name": "0298-01",
  "first_page_order": 326,
  "last_page_order": 329
}