Randolph v. Brown , 115 Ala. 677 ( 1896 )

COLEMAN, J.

The probate judge became a defaulter to the State of Alabama for moneys received by him by virtue of his office, which belonged to the State. The State sued upon the official bond of the judge, and recovered judgment against him and his sureties. This judgment was paid by W. D. Brown, one of the sureties, and he then filed the present bill, praying to be subrogated to the rights of the State. The only material' question is, whether the claim to a homestead exemption is available to the defaulting official. That the constitutional exemption applies only as to “debts contracted, ” is clear from the constitution itself, and has been so declared many times. That a probate judge ‘ ‘who becomes a defaulter to the State of Alabama for moneys received by virtue of his office which belong to said State,” is guilty of a wrongful conversion of such, moneys, and a tort, would seem to be too evident for reasonable controversy. The question is not an open one in this State.—Cr. Code of 1886, § 3805 ; Schuessler v. Dudley, 80 Ala. 547 ; Vincent v. The State, 74 Ala. 274.

The condition of the bond of the judge of probate is, “that he will faithfully discharge the duties of such office during the time he continues therein, dr discharges any of the duties thereof.” — Code of 1886, § 257. Section 265 of the Code declares “the bond of the judge of probate is a lien upon the property of the principal from the date of its execution.”

The default of the probate judge as averred in the' bill, was a breach of the condition of the bond, and none the less so, because the breach consisted in a tort.

Purchasers from the probate judge “are charged by law with notice of the lien, and can acquire no right or interest which is not subordinate to it.”—Knighton v. Curry, 62 Ala. 404. There is no principle of law upon which the respondents’ second and third pleas can rest. Wright v. Jones, 103 Ala. 539, and authorities supra.

We think the case of The State v. Lott, 69 Ala. 147, equally conclusive of the right of the State to recover interest upon the moneys wrongfully converted by the judge of probate.

The decree of the city court upon the pleas of respondents is in accordance with these views, and is in all respects affirmed.

Affirmed.