1 Mont. 570 | Mont. | 1872
This is an action on a replevin bond, and the cause comes into this court on appeal from a judgment for defendants in the court below.
A statement of the facts, as shown by the record, will be necessary to a correct understanding of the case.
On the 29th day of January, 1870, the plaintiffs commenced a suit in attachment against one Germain, and levied upon certain personal property belonging to Ger-main, which at that time was in the possession of one Dahler, by virtue of a mortgage by Germain to Dahler, July 1,1869.
On the 3d day of February, 1870, four days after the plaintiffs’ attachment, Dahler commenced his action against
Upon this state of facts, are these defendants liable upon their undertaking ?
The condition of the undertaking or bond of defendants is “for the prosecution of the said action for the return of said property to said defendant, if return thereof be adjudged, and for the payment to said defendant of such sum as may, from any cause, be recovered against the plaintiff.”
The action of Dahler against Steele, sheriff, was dismissed, and judgment for return of the property duly rendered, and return was not made, and thereby the condition of the undertaking was broken, but prior to the judgment of return, and while the property was in possession of Dahler, by virtue of the undertaking of defendants, it was attached at the suit of Clarke, and thereby
Does this inability of the sureties to perform the judgment of return, relieve and release them from liability upon their undertaking ?
At the time the proceedings in replevin were instituted, and the undertaking given, the property was in the custody of the law. The sheriff held it by virtue of plaintiffs’ attachment, and for the plaintiffs, and it will be necessary to inquire into the nature and extent of plaintiffs’ lien under this process.
If plaintiffs’ lien upon the property continued in full force and operation notwithstanding the proceedings and undertaking in replevin, and their rights were not thereby injured or impaired, and if, after judgment of return in the replevin suit, the property was subject to their control as against defendants, and if Clarke acquired no rights by virtue of his attachment except subject to the rights of the plaintiffs, then to hold that the sureties are still liable upon the undertaking would place the means in the hands of plaintiffs to collect their debt twice,- once from the property attached, and once from these defendants upon their undertaking for if the lien of the attachment continues, and thereby subjects the property to the control of plaintiffs, they could immediately possess themselves of the property, and by the very act of obtaining possession would cause a forfeiture of the bond, so that by securing their debt from the property they create a liability against defendants by which they are again entitled to collect their debt.
The theory upon which the sureties are held upon their
The law will not thus lend its aid to rob one person that another may receive twice what belongs to him, and the result of this case must turn upon these questions:
1. Did plaintiff’s lien, by virtue of his attachment, continue, notwithstanding the proceedings in replevin % and,
2. The property coming again to the possession of the sheriff by virtue of Clarke’s attachment, and thereby being placed beyond the power of sureties to return the same, does riot such inability of the sureties, and such possession of the sheriff, fulfill the condition of the undertaking to return the property ?
- As applicable to the foregoing questions, we think the following propositions can be maintained:
1. The possession of goods in replevin by virtue of the undertaking is a temporary possession, and continues only until the right of possession has been tried and settled. If, after giving the undertaking, the plaintiff should sell the
2. If the undertaking carries with it the title, the property would be subject to levy, execution and sale, and thereby the primary object of the suit, the property itself would be defeated. And if the property is subject to execution and sale, the law would thereby authorize the means whereby a return of the property would be rendered impossible, and the discharge of the undertaking would be defeated, and yet the sureties would be subject to a penalty for failing to perform it.
Upon this subject we adopt the language of Justice McLean in Hogan v. Lucas, 10 Pet. 400, and say: “If the property be liable to execution, a levy must always produce a forfeiture of the condition of the bond, for a levy takes the property out of the possession of the claimant and renders the performance of the bond impossible. Can a result so repugnant to equity and propriety as this be sustained ? Is the law so inconsistent as to authorize the means by which the discharge of a legal obligation is defeated, and at the same time exact a penalty for the forfeiture? This would, indeed, be a reproach to the law and to justice.”
This theory would give the property to a party confessedly in the wrong, and authorize him to convert it to his own use at pleasure, while he could only be held to account
3. If the undertaking in replevin gives only a temporary right to the possession of the property, and does not carry with it the title, then the lien of the attachment is not disturbed or impaired, and, after judgment of return, the attachment controls the property. And, if subsequent attachments or executions should be levied upon the property during the pendency of the proceedings in replevin, or afterward, such attachments or executions would be subject to the lien of the first attachment; and if the property, by virtue of such second execution or attachment, should come again to the possession of the sheriff, the condition of the replevin bond to return the property is fulfilled.
4. If after the undertaking in replevin is given, the property is again taken by due process of law, and held or sold, and thereby a return is rendered impossible, this fact would discharge the obligation of the sureties to return the property.
In support of the foregoing propositions we cite the following authorities : Hunt v. Robinson, 11 Cal. 262; Buckle v. Luce, 1 Comst. 171; Lockwood v. Perry, 9 Metc. 444; McRea v. McLean, 3 Porter, 138; Evans v. King, 7 Mo. 411; Hogan v. Lucas, 10 Pet. 400; Drake on Attach., §§ 290, 299, 303.
1 Suppose that the sheriff, by virtue of an execution, levies upon the property of A and advertises the same for sale; B claiming the property replevins it, causes an undertaking to be given and obtains possession of the property. The suit in replevin results in favor of the defendant, and judgment for return is given, and immediately the sheriff, by virtue of his execution, repossesses himself of the property, thereby placing it beyond the power of B or Ms sureties to perform the judgment of return, and thereby creating a breach of the undertaking. Can it be contended that the execution creditor could thus secure the property and, by his own act, cause a forfeiture of the undertaking, and at
Both reason and authorities fully warrant us in saying that the law does not thus stultify itself, and we say that the lien of attachment continues unimpaired during the proceedings in replevin, and when the same property came again into the hands of the sheriff, by virtue of subsequent attachments or executions, the condition of the undertaking in replevin to return the property was fulfilled and the sureties discharged.
In the case of Hunt v. Robinson, 11 Cal. 262, this view is fully maintained. In that case Treadwell commenced a suit against David Jones by attachment, which was levied upon certain personal property by the plaintiff, Hunt, as sheriff. Mary Jones, wife of David Jones, claimed the property as sole trader, and commenced her action of replevin, and obtained possession of the property upon giving an undertaking in replevin with these defendants as sureties. The replevin suit was decided on the 5th day of February, 1855, in favor of Hunt, and a motion made for a new trial by Mrs. Jones, which was overruled on the 9th of March, 1855. Treadwell obtained judgment against David Jones November 30, 1854. On the 18th of February, 1855, certain executions in favor of other creditors of David Jones being in the hands of Hunt, plaintiff, were levied upon the same property, and the property sold about the 1st of February. The sheriff being in doubt as to which of the several creditors were entitled to the proceeds of the sale, paid the money into court, and' filed his bill of interpleader, making the creditors parties. Upon the hearing the court decided that the second class of creditors were entitled to
In many important particulars this case is parallel to the one at bar. In this case the propertyis attached, it is then replevied, and during the pendency of the' suit in replevin, the same property is taken upon execution in favor of other creditors of Jones and sold, by reason of which subsequent execution and sale, the property comes again to the possession of the sheriff, and is placed beyond the reach of the/ sureties to perform the judgment of return. In the case at bar the property is attached by Caldwell and Ingram. It is then replevied by Dahler, and during the pendency of the suit in replevin, the same property is attached by Clarke, and comes again to the possession of the sheriff, and, is subsequently sold by virtue of Dahler’s mortgage, and the sureties are, by virtue of said subsequent attachment and sale, prevented from performing the judgment of return. In both cases there was a judgment for return of the property, and in either case the sureties in the undertaking were prevented from making return by subsequent levies in attachment or execution upon the same property.
In the case referred to (Hunt v. Robinson), the court make an elaborate and exhaustive examination of the authorities, and reverse the judgment against the sureties, for the reason, that when the property came again to the possession of the sheriff, by virtue of the subsequent executions, the condition of the replevin bond to return the property was fulfilled, and for the further reason, that to hold otherwise, would impose upon the party replevying the property the extraordinary risk of having to pay the judgment, and also to lose the property.
We adopt this view, and say: That according‘to every principle of law and practice, if the sureties in the under
Again: If a judgment is rendered against these sureties, this result must follow: Germain who is justly indebted to these plaintiffs, and against whom they have obtained a judgment, would be enabled to pay the judgment without parting with any of his property, while these sureties would be compelled to pay for what the law had taken from them, and for which they have not received any benefit, and thus the defendant in attachment or execution obtains two prices for his property. “ This, indeed, would be a reproach to law and justice.”
But the theory that the replevin of Dahler does not destroy the lien of Caldwell and Ingram’s attachment does justice to all the parties. Clarke’s attachment is subject thereto, and is a subsequent lien, and the property coming again into the possession of the sheriff, the lien of plaintiffs as well as that of Clarke is preserved; the plaintiffs are placed in the same position as before the replevin suit, the property is in the hands of the sheriff, the lien of plaintiffs is unimpaired, and the only damage plaintiffs could have suffered would have been the detention of the property from the date of plaintiffs’ suit to the date of Clarke’s, which was but a few days, and the damage to the plaintiffs for this detention from the sheriff could be only nominal in any event.
5. The record shows that Dahler foreclosed his mortgage against Germain and procured a decree and order of sale, and that, by virtue of such proceedings, the sheriff sold the property in question, and applied the proceeds thereof to satisfy said decree. These proceedings demonstrate the fact
But Clarke’s attachment is conclusive of the case. It brings the property again to the possession of the sheriff, and thus fulfills the condition of the undertaking. It is idle to say that because Dahler immediately replevied the property after Clarke’s attachment, and thereby obtained possession, it was in the power of his sureties in the first replevin suit to perform the judgment of return. The levy of the attachment just as effectually takes the property beyond the reach of the sureties, as if it had been sold on execution. And when the property is delivered to Dahler by virtue of the second suit in replevin, a second undertaking with sureties is given for the return of the property, and it cannot be taken by the first sureties without injuring the rights
Then if the property did come to Dahler’s possession, and was so in his possession when the judgment of return was given, it was so incumbered with the rights of other parties that had accrued since the making of the first undertaking that a return thereof was impossible, and this impossibility resulted from the operation of law, and over which the sureties had no control.
Suppose the second suit had been dismissed and judgment for a return of the property rendered, or suppose a trial had resulted in such a judgment, but in the mean time the property had been taken by the first sureties, by what principle of right or law shall the second sureties lose the property and be made to pay its value for the benefit of the first sureties ?
The only reasonable road out of these difficulties is to say that the attachment of Clarke, and the second undertaking in replevin, places the property beyond the power of the sureties to perform the judgment of return, and this discharges the bond.
The instructions to the jury in the court below were in conformity with the views herein expressed, and we find no error therein.
The judgment of the court below is affirmed.