Scott, J.,
delivered the opinion of the court.
This was an action begun in the county court of Marion county by the defendant in error against the plaintiff in error, for the recovery of a debt due the defendant in error for school money loaned to E. McDonald, for whom the intestate of the plaintiff in error was a surety. Judgment was recovered in the county court, whence the case was transferred to the circuit court, where judgment was again rendered for the defendant in error, upon which the plaintiff in error sued out tiffs writ.
It appears, that Jameson Samuels, the intestate, together with W. B. Bebee was surety in a bond for $1200, executed by E. McDonald to the county of Marion for school money. The bond was executed on the 19th day of January, 1842, and was secured by a mortgage on a tract of land to which McDonald was entitled but to one undivided half, and which had been previously conveyed by him in 1840, in trust, to pay his debts, and which afterwards, in November 1842, was sold under the trust. The court instructed the jury, that the fact, that McDonald had not a clear and perfect title to the land mortgaged to secure the debt, did not discharge the surety; to which instruction the plaintiff in error excepted, and now maintains its impropriety as a reason for reversing the judgment of the court below.
The II section of the 2 article of the act to provide for the orgaaiza tion and support of common schools, passed February 9th, 1839, enacts, that if the sum to be loaned exceed one hundred dollars, the court shall require in addition to bond and personal security, a mortgage in fee, on real estate, free from all liens and encumbrances within the county, equal in value to double the.amount of the loan.
The school lands were vested in the State, in trust for the benefit of the inhabitants of the township in which they are respectively situated. The State vested in the county courts the management of this trust. Those courts ,are the agents of the State for this purpose. The principle, that the State is not affected by the laches of her agents, was sanctioned by this court in the case of Park vs. State, 7 Mo. Rep.
The doctrine, thatlaches is not imputable to the government, is founded on considerations of policy. The State can only act through her officers, and her transactions are so multiplied and her agencies so numerous, that great losses must result from maintaining that she is liable for the laches of those to whom she is compelled to entrust the management of her pecuniary canearas. The provisions of the law above cited, were intended only for the regulation of the conduct of the offipers to whom was confided the care of the school monies, and to secure those monies from loss. They are merely directory and form no part of the contract with the surety. The surety has the same means of forming a judgment of the fidelity of the public agents as the State, and if he reposes confidence in them and is deceived, he cannot expect that the consequences of their neglect shall be visited on the State. The case of the People vs. Johnson, 7 J. R., relied on by,the plaintiff in error, has been overruled.
The other Judges concurring, the judgment will be affirmed,