Lott v. Mobile County , 79 Ala. 69 ( 1885 )

SOMERYILLE, J.

The leading purpose of the bill is to enforce, in favor of the county of Mobile, a lien upon the property of certain sureties of the tax-collector of the county, created by the execution of three official bonds, extending through two terms of office, commencing in August, 1880. The first bond, which was executed in 1880, was reported insufficient by the grand jury, and the collector was required to execute an additional bond in February, 1884. The obligees of these two bonds became, under the statute, co-sureties as to each other. — Code, 1876, §§ 184-191.. The last bond was executed by the collector, in August, 1884, upon entering upon his second term of office of four years. There are some sureties on. each bond who were not on the other bonds, and some of the sureties on each instrument who are not joined in the suit.

The statute declares, that “the bond of the tax-collector shall operate, from its execution, as a lien in favor of the State and county on the property of such tax-collector, for the amount of any judgment which may be rendered against him in his official capacity for the State or county taxes, and on the property of his sureties, from the date of his default.” — Code, 1876, § 403.

1. That the Chancery Court will assume jurisdiction to enforce a lien of this kind, is now well settled by our decisions; and this irrespective of any other equity, none other in fact being requisite.—Shuessler v. Dudley, at present term; Knighton v. Curry, 62 Ala. 404; Dallas County v. Timberlake, 54 Ala. 403.

2. The court having jurisdiction to enforce the lien, it necessarily follows that there is no force in the several grounds of demurrer to the bill, based on the idea that the complainant had a complete and adequate remedy at law, or that no facts were alleged showing a complicated state of accounts between the collector and the county, or that the bill was defective as one filed alone for discovery, or to surcharge and falsify a stated account, or other like objections. The bill .is not dependent on either of these phases of equity to support it; for, when chancery assumes jurisdiction for one purpose, it will retain it for all, that complete and not partial justice may be done in the premises.

3. The appellant’s contention, that the bill fails to aver an indebtedness to the complainant by Lott, with sufficient certainty, is not sustained by the record. It is true that the ex-goarte statement of Lott’s account, prepared by himself, which is set out in extenso as an exhibit to the bill, fails to show on its face that anything was due from him. But the correctness of this account is explicitly denied, and the bill avers that it was never accepted by the complainant as a correct account, but that it was full of gross errors, a correction of which would leave the defendant Lott and his sureties largely indebted to the complainant in the matter of his tax account. It is only stated accounts which need to be surcharged and falsified by the formal specification of particular errors. This account did not become stated by its retention without objection, upon any presumption of supposed acquiescence in its correctness, for the reason that objection was made to it in ample reasonable time. It was not presented by Lott until August 31, 1880, and the bill was filed October 5th'following, or within thirty-five days from the date of its presentation. A much greater length of time might justly have been claimed for the proper examination of an account involving tax transactions running through nine consecutive years, and involving amounts footing up in the aggregate between six and seven hundred thousand dollars.

4. It was the duty of the tax-collector to collect delinquent taxes assessed for previous years, remaining uncollected, and for which no credit had been given under the statute authorizing credits for insolvencies and errors in assessments. Perry County v. Railroad Company, 58 Ala. 546; Acts Ala. 1880-81, pp. 6-7.

5. The complainant had a right, under the statute, to proceed against such of the sureties as it elected to do, the bonds being several as well as joint. It was no sufficient objection, therefore, that some of the sureties were not joined as defendants.—Code, 1876, §§ 3754, 2905; Teague v. Corbitt, 57 Ala. 529. The adjustment of the relative rights of contribution between the co-snreties was a matter affecting only themselves, and one in which the complainant had no material concern. The present bill does not seek any account for years prior to the year 1880. But taxes assessed previous to this time, and collected afterwards, are claimed to be a liability imposed upon those who were sureties during the time these collections were made respectively.

6. It is our opinion, that the lien of the tax-collector’s bond, created by section 403 of the Code (1876), is intended to operate upon property of the collector acquired by him subsequently to the execution of the bond, as well as on such as he may own at the time of its execution. So with property acquired by the sureties at any time between the date of the collector’s default and the time when suit is commenced for the enforcement of the statutory lien. Any other construction would operate to defeat the purpose of the statute, and to cripble its practical enforcement.

7. The bill is not, in our opinion, rendered multifarious, by joining in one suit the claims of the county against the sureties on the several bonds. The first and the second bonds are in effect but legally one, under the statute, the sureties on the additional bond being made co-sureties with those on the first. The principal in the third bond is the same as the principal in the other two, being the one debtor who is primarily liable, and for the settlement of whose accounts with the coxxxplainant the bill is filed. He is thus, in a certain sense, a ligament, or comxecting link between all the bonds-men. The demands against the two sets of sui’eties, it is true, are, to some extent, distinct claims; but they are not entirely disconnected, in view of the particular facts of this case. The collector is avei’red to have kept one running account, extending all the way through his last two official terms, applying the funds collected miscellaneously, without regard to any proper appropriation of payments. The sureties on each bond are interested in the taking of the account, and in the proper adjustment of these payments, and in the correction of alleged errors in the account. The question of multifariousness is often one of policy, and convenience, and, therefore, rests largely "within the discretion of the court. It is sufficient to sustain a bill against such a charge, that each defendant has an interest in someone matter common to all the parties. The objection is discouraged, when sustaining it might lead to inconvenience, or defeat the ends of justice. Piling separate bills against each set of sureties in this case, it seems to us, might lead to groat inconvenience, in view of the peculiar interest each surety has in the taking of the account, and the correction of the alleged errors of credits and payments.

We lind no error in the decree of the court overruling the demurrers to the bill, and the decree is accordingly affirmed.

STONE, C. J.

Lott was tax-collector of Mobile county for two consecutive terms. Ills sureties on the two bonds, who are sued in this action, are not entirely the same. He is charged in one and the same bill with a default during each term, and he is sought to be held accountable for each of said defaults in one .and the same bill. If the two defaults are shown, separate decrees will have to be rendered against the different snreties on the separate bonds. I think the demurrer for ninltifariousness ought to have been sustained. — Sto. Eq. PI. §§ 271, et seq.j 1 Brick. Dig. 719,