Schuessler v. Dudley , 80 Ala. 547 ( 1886 )

SOMERVILLE, J.

The defendant, Dudley, was tax-collector of Chilton county, and, in October of the year 1875, executed his official bond in such capacity, and in the form prescribed by statute, with Moses Simmons, the complainant’s intestate, and others as sureties. In the years 1876 and 1877, Dudley, having collected a large amount of tax-money due the county, failed to pay over such funds to the county treasurer, within the time fixed by law, and thereby became a defaulter to the county on May 1st, 1877. A summary motion was instituted in the Circuit Court against Dudley and his sureties, in the name of Chilton county, and judgment was rendered against them in the following year, -1878, for the amount of such defalcation, with interest, damages, and costs — being about tlig sum of fourteen hundred dollars. This proceeding was taken under section 3396 of the present Code.

Simmons, as surety, paid this judgment, and it was assigned to him by the plaintiff in the judgment, Chilton County, pursuant to the requirement of section 3418 of the Code of 1876, which expressly preserves the full vitality of such judgments as against the principal debtor, in favor of the surety paying or satisfying them, under certain qualifications not affecting this case.

The present bill was filed by Simmons, the suit being after-wards revived in the name of his administrator, and its purpose is to enforce the lien created by statute in favor of the original plaintiff, for the benefit of the complainant, as a surety, against the tax-collector, the co-sureties on his bond, and certain alienees, of property fraudulently conveyed by such collector after the execution of his .bond. It is provided by statute — and such was the law in force at the time of the giving of defendant’s, Dudley’s, bond — 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.

It has been settled by this court that where the surety of a tax-collector makes good the default of his principal, even before judgment rendered for such default, he is entitled to be subrogated, on equitable principles, to the rights of the State or county, and to have the lien of the bond, created by this statute in favor of the State or county, enforced for his own indemnity, against the principal, the co-sureties, and the purchasers from them, who have notice of the existence of such lien. — Knighton v. Curry, 62 Ala. 404. And the joinder of these various parties as co-defendants to such a bill has been decided not to render it objectionable on the ground of multifariousness. — County of Dallas v. Timberlake et al., 54 Ala. 403. It can not in our opinion affect the equity of such a bill save to strengthen it, that the judgment rendered against the collector has been assigned by the plaintiff in it to the surety. The very purpose of the statute authorizing this assignment was to enlarge and not to diminish the surety’s rights, at least against the principal debtor. It not only authorizes the assignee to use the name of the original plaintiff for its collection by the issue of execution against the principal; but he may also “ assert in law or equity any lien or right against the principal debtor which the plaintiff could assert, if the debt tad not been paid.” — -Code, 1876, § 3418. This he may ohviously do in his own name, in a court of equity certainly, as was done in Vanderveer v. Ware, 65 Ala. 606.

These principles settle the general equity of the bill, as involving a subject-matter properly within the jurisdiction of a court of chancery, and show that the chancellor erred in its dismissal.

There i.s another question, however, presented by the record. Two of the defendants, Mrs. Callens and Mrs. Baker, are shown to be purchasers of lots which constituted a portion of the homestead of their co-defendant, Dudley, which was owned and occupied by him as such, at the time of the execution of his bond as tax-collector in October, 1875. It is not denied that they are chargeable with notice of the lien on the land, if by law it was fastened on the homestead. The question then is, whether the homestead of the principal debtor, the tax-collector, was subject to condemnation to satisfy this demand. Did the execution of the bond, under the influence of the statute, operate to fix the lien on property' which is exempt from sale for ordinary debts, under the Constitution and laws of this State ?

The rights of the complainants in this particular, as we have shown, are precisely commensurate with those of the original plaintiff in the judgment, the County of Chilton. As assignee of the county, he is empowered to “ assert, in law or equity, any lien or right against the .principal debtor, which the plaintiff could assert, if the debt had not been paid.” — Vanderveer v. Ware, supra; Code, 1876, § 3418. This language of the statute is vez'y broad and explicit, and can admit of but one interpretation. It puts the complainant in the shoes of the County of Chilton, and permits no defense against him which could not have been successfully urged against the original plaintrii, had there been no assignment to, or. payment by the surety.

It is our opinion that the homestead exemption law is not operative against the present liability. The Constitution and statutes apply only to sales on execution, or other process from courts “for any debt contracted.” It has no application to judgments based on torts, or liabilities in' the nature of torts. 'Const., 1875, Art. X, Sec. 2; Code, 1876, § 2820. The past decisions of this court commit us fully to this construction. In Meredith v. Holmes, 68 Ala. 190, it was decided that a defendant’s homestead was not exempt from levy and sale under execution on a judgment based on a recovery of damages in an action of trespass. In Williams v. Bowden, 69 Ala. 433, a like ruling was made as against a judgment recovered for a penalty given by statute against a mortgagee for failure to enter satisfaction of a mortgage, after its payment, pursuant to the requirement of section 2223 of the Code of 1876. And in Vincent v. The State, a claim of exemption was disallowed on a bill being filed by the State against a defaulting public officer, for the recovery of -money belonging to the State, which he had converted to his own use. This ruling was based, not on any alleged prerogative of the State, but upon the broader ground that the conversion of the money was both a tort and a crime, and no exemption of property could be claimed or allowed against such a liability.

In Whiteacre v. Rector, (29 Gratt. 714), 26 Amer. Rep. 420, the Virginia Court of Appeals, under a constitutional provision precisely like our own, decided that a homestead exemption could not be claimed as against a fine due the State for a violation of its criminal laws. While this court, in The State v. Allen, 71 Ala. 543, admitted, arguendo, the probable correctness of this view as against the principal debtor, who was convicted and fined, its application to the sureties was denied on the ground that the confessed judgment for the fine was purely contractual as to them — a mere promise to pay money.

In Kirkpatrick v. White, 29 Penn. St. 176, a constable, against whom an execution was issued upon a judgment, obtained for negligence in failing to return an execution in another cause, was' held not to be entitled to the benefit of the exemption laws.

There are many other decisions in various States analogous to the foregoing. — Thompson on Homesteads, §§ 380, 383.

The present liability, so far as the principal debtor is concerned, is in the nature of one ex delicto. It is not a mere suit on the tax-collector’s bond, but a summary action for money presumptively converted, with interest, a penalty of ten goer cent, damages, and costs added. It is a judgment for an official defalcation, not for “a debt contracted,” within the meaning of the constitution, or the statutes, as much so as either an ordinary penalty, or a fine, for either of which an action of debt in mere form would lie.

The objection, that this result can only be reached by working out contribution among joint wrongdoers, is without force.' The tax-collector, who is the defaulter, is here the only wrong doer. While he has been guilty of an offense against the public revenue, which is made by statute either a misdemeanor or felony, according to the circumstances of the case, the sureties on his bond are chargeable with no such criminal dereliction. Britton v. State, 77 Ala. 202; Code, 1876, §§ 4265,4266 ; 414. They have contracted with the county, and with each other, to make good this default, and out of these contractual relations, grows the jurisdiction of equity in this case. But the rights of the complainant, in the matter of exemptions, grows more particularly out of the statute and the assignment to his intestate, of the judgment recovered by the county of Chilton. Against this, as we have shown, there was no homestead exemption which could be lawfully claimed.

These views necessarily lead to á reversal of the decree of the chancellor, which is accordingly adjudged, and the cause is remanded, that further proceedings may be had in accordance with the principles announced in this opinion.