Lexington weekly intelligencer. (Lexington, Mo.) 1871-1887, 1879-07-05
LAFAYETTE COUNTY VS.. HIX0N.
SUPREME Court OF MISSOURI,
April Term, 1879. :
Lafayette County.
Appellant, Appeal rom rom.
VS.. Lafayette Circuit
VIM. Hixon ct al, Court.
respondents.
OPINION OF THE COURT.

OPINION OF THE COURT.
The pr.sepu acJlUn Is Iuunesd uPou
honds axecutod to the county OF La
tMo We no sx SYm. Hixon as principal, and
NJ l.. DeMotte and l.. S. Hison as sure |
ties, one tor 500 given tor township
school funds, the other for SS19, given
for school funds of the county. On the
18th day of June. 1871, VIM. Hixon, IN
pursuance OF the requirements OF the
statute, executed to the county OF Lafay-
cite mortgage securing both OF the
aforesaid bonds. On the 14th day OF
NAV, 1872, VIM. Hixon gave another
mortgage to secure said bonds, and an
entry Of satisfaction of the original
mortgage was made by the county clerk
on the margin of the record thereof,
bearing date May IA, 1872. When this
entry was in fact made, does not appear.
On the 10th day Of July. 1873, VIM.
Hixon presented petition to the county
court asking permission to substitute tor
the mortgage heretofore made by him
a mortgage upon certain real property
described therein, which he represented
as sufficient to secure the payment OF
the money loaned him. whereupon the
county court made the following order;
SIT is, therefore, ordered that the clerk
of this court enter satisfaction IN full on
said original mortgages upon the sad
Hixon presenting mortgage on tne
above described real estate, properly
executed; and on the 11th day OF July
1873, VIM. Hlxon executed and deliv
cred to the county a mortgage on the
property referred to in the foregoing
order.
An entry of satisfaction, without date
appears upon the margin of the record o
, the mortgage of May IA, 1872, which w
presume was made after the order OF tn
10th of July, 1873, but the record contain
no testimony on this subject.
The mortgage of July IL, 1873 ,recite
!" An indebtedness of 81 500. This sum
largely IN excess of the sum due on tn
bonds sued on when the mortgage wa
> given, and there is nothing in the recor
l. Showing reason tor this discrepancy
r As this mortgage, however, was otfere
in evidence as having been substitute
under the order OF the county court. fe
j. the mortgages made to secure the pay
, ment OF the bonds in suit. we teel Just
fed, in the present defective state OF II
10 record, in presumlng that it was intende
,r to secure the bonds in suit, and 9TH
of loans. The sureties. DeMotte and Hixo
.. pleaded and testified that the mortgag
:" of June 13, 1871, and May IA, 1S72.we
entered satisfied without their X knowled!
or consent, and they claimed that the
were therefore discharged. The circr
court rendered judgment against t
: principal and in favor of the suretit
j. From this Judgment the county has a
ny pealed.
en- The statute provides that when mon
ye- belonging to the school fund shall
III, loaned, the county court shall cause
~ same to be secured by mortgage in
Gil or real estate situated within the coun
w free from all liens and membranes, 4
ell of the value of double the amount of
inf ! loan. and also with bond and persol
security. Wag. Stat. 124S, secs. 81
No authority is anywhere conferl
eir upon the county court to dispense W
es- the real estate security required to
on taken.
The taking of such security is no
'n- matter of discretion, but Of positive ST
ms utory regulation. II the county CO
leir may take mortgage and immediat
,er- thereafter release it, without .paymen
the debt it was taken to secure, and W
.s out taking in lieu thereof any OF
fVe' mortgage, it would seem to follow
uor the court might lawfully dispense v
full such mortgage in the first instance ;
,es also might it in the same way dlspe
49, with the bond and personal security
sole quired to be taken. In this way the I
'ain ditions and restrictions with which
lnce legislature has thought it prudent
il, ~ guard the management OF the SC
" fluid by the county court, might be
regarded aud annulled. We see no
ODDS son. however, why one security may
ten be substituted tor another, where
,nts, convenience of parties may require
and the change can be made without
arse riment to the school fund And the
lib such substitution should be made
, the the knowledge OF the surety, still III