State Ex Rel. Cox v. . Blair , 76 N.C. 78 ( 1877 )

In proceedings for partition the Court may authorize any officer thereof, or any other competent person, to be designated in the decree of sale, to make the sale. Bat. Rev. ch. 84, § 15.

It is most usual to appoint the Clerk of the Court for that purpose, because his responsibility is secured by his oath and his bond; and because as an officer of the Court, he is under its immediate control. Hence, nothing to the contrary clearly appearing, where the Clerk is appointed to that duty, it is the presumption that he is appointed in his official capacity, whether he is designated in the order as Clerk or not. State exrel McNeill v. Morrison, 63 N.C. 508.

The Clerk here having made the sale and collected the money in pursuance of an order of the Court, held it in his official character.

This is the only question raised by the pleadings, though it was insisted in the argument that the other tenant in common was a necessary party to the action. We do not think so. The statute declares that all persons having an interest in the subject of the action and in obtaining the relief demanded, may be joined as plaintiffs. C. C. P., § 60. Here, the fund is fixed in amount and the plaintiff's share is a matter of mere clerical computation. No account is necessary to be taken between the tenants and each may sue for his specific part, as well as if it was a specific legacy. There is a clear distinction between this case and that of a distributee of an estate. There, before a judgment can be rendered, it is generally necessary to take an account of the administration and of the respective liabilities of the distributees for advancements, c., before it can be ascertained what may be due. The Courts in such cases hold that all the distributees of the estate are necessary parties to the proceeding, to avoid a multiplicity of suits and to adjust and determine the rights of all in the same action. In our case, the amount due to each tenant is ascertained and their rights of action are several.

It was further objected that the decree of 1874, directing the fund to be paid to the parties entitled, was made without notice to the defendants and was void as to them. This order was not necessary to the plaintiff's right of action; but what is that to the defendants? They owe the money, and can have no voice in adjusting the rights of the partitioners between themselves.

It is again insisted for the sureties on the official bond of the Clerk, that according to the pleadings, the Clerk was in no default, as he had to the time of his death performed all the orders of the Court, and if there was any default, it was on the part of the administrator of Bulla, for which he must be answerable on his administration bond. But the fact is overlooked by the counsel, that the defendants jointly demurred to the complaint and assigned as one cause, that the plaintiff did not set forth a sufficient cause of action. The demurrer was overruled, and the suretiesdid not appeal and did not put in an answer. The plaintiff was therefore entitled to judgment against them. At the next term of the Court, the administrator, Blair, did answer, and the utmost that the sureties of Bulla can ask, is, that we should treat Blair's answer as their answer. Treating it thus, the answer admits the collection of the money by Bulla and alleges that it was stolen from Bulla, without his default. Here then, is the admission of the Clerk's default in office, for it has been expressly held by this Court, that the loss of the money in the manner alleged, is an official default and breach of his bond, for which the sureties are liable.Havens v. Lathene, 75 N.C. 505; Commissioners of Bladen v. Clarke,73 N.C. 255.

So, quacunque via data, whether upon the demurrer or the admissions in the answer, the plaintiff was entitled to judgment.

There is no error.

PER CURIAM. Judgment affirmed.