Collier v. Henderson , 86 Ala. 279 ( 1888 )

STONE, C. J.

When Stephenson, the county superintendent of education, borrowed money from Collier, he transferred to him, first, the county apportionment-sheet, and, afterwards, the auditor’s warrant on the tax-collector. These were transferred to Collier that he might, through them, collect from the tax-collector enough of the school fund of the county to repay to him the money he had lent to Stephenson. Holding the apportionment-sheet and the auditor’s warrant, he did receive from the tax-collector a sufficient fund to reimburse himself. He knew, however, when he received this money, that it belonged to the school fund of the county, and was, therefore, a trust fund. Receiving this trust money, as he did, the law made him a trustee in invitum, and charged him with the duty and liability to restore the money to the trust fund, from which it had been improperly diverted. Lee v. Lee, 67 Ala. 406, and citations. When Collier restored the money to its rightful custodian — -the succeeding county superintendent of education — he did only what the law and morality alike commanded, and such payment neither conferred nor strengthened any right to maintain this suit. It left him precisely where he stood when he negotiated the loan to Stephenson. It results from what we have •said, that the repayment of the money by Collier to Haley, successor of Stephenson, whether made under coercion or voluntarily, can exert no influence in determining the question of the liability of Stephenson’s Sureties on his official bond.

The bond of the county superintendent, like the bonds of all public officers, binds him and his sureties, that he will faithfully perform all duties which are or may be required of him by law. It extends no farther. . The law not only fails to make it his duty to borrow money, but it gives no authority whatever to do so. When he borrowed Collier’s money, he bound himself, but he bound no one else. — Kirkman v. Benham, 28 Ala. 501; Morrow v. Wood, 56 Ala. 1; City Council v. Hughes, 65 Ala. 201.

Stephenson, when removed from office, was largely á defaulter. There was testimony tending to show that some, or all of the money borrowed from Collier, was applied by Stephenson in support of the public schools. There was also testimony showing that the money refunded by Collier to Haley reduced, pro tanto, what otherwise would have been the amount of Stephenson’s default, for which his sureties would have been liable. This, the appellant contends, raised an implied promise on the part of the sureties to repay the money to Collier. The particular ground on which this contention is rested is, that, to the extent Collier’s money was so used, it reduced the liability of the sureties, and that they availed themselves of it in their settlement, paying that much less oh account of Stephenson’s default.

We have shown above, that no obligation, legal or moral, rests on the sureties to refund to Collier the tax money he was required to restore to Haley, Stephenson’s successor. He thereby only returned a trust fund to its proper custodian; a trust fund which he had acquired illegally, and held illegally.

There is as little merit in the other phase of his contention. Stephenson borrowed the money from Collier without authority, and, as the sequel showed, to supply a deficit in the school funds, caused by his own misuse of them. His sureties are not shown to have had any connection with the negotiation of the loan. As to them, it was res inter alios. It was a voluntary parting with his money by Collier, not in obedience to their request,' and not in consequence of any legal liability resting on them to pay it. No one can gratuitously, or without request, pay money for another, and thereby make that other his debtor, unless he is first under a legal liability to pay, such as that of a surety, indorser or guarantor, who, after default of his principal, pays the money; or, unless the payment is made to relieve his property from an incumbrance, which the other is bound to remove. — Weakly v. Braham, 2 Stew. 500; Stephens v. Brodnax, 5 Ala. 258; Kenan v. Holloway, 16 Ala. 55; 3 Brick. Dig. 786, §§ 55, 60. If we were to pronounce in favor of this suit, we would thereby declare that, if A lends money to B, and B with that money pays a debt on which 0 is his surety, thus relieving C of his liability, A may maintain an action against C, and reimburse himself for the money lent to B, although C was' not consulted, and had nothing to do with the transaction.

The authorities relied on by appellant furnish no warrant for this suit, although they may be sound enough in the ’ cases in which the judgments were rendered.

Affirmed.