The obligors undertook to well and truly save, keep and bear harmless, and indemnify the plaintiffs’ testator, William C. Conner, “of and from all harm, let, trouble, damage, liability, costs, counsel fees, expenses, suits, actions, judgments that may at any time arise, come, accrue or happen to be brought against him, for or by reason of the levying, attaching and making sale,” under and by virtue of an execution issued to him as sheriff, on a judgment in favor of the defendant Dubee against one Fischer, of personal property claimed by third persons. The undertaking was not against damage merely, but was an indemnity against liability by judgment as well.
(Rockfeller
v.
Donnelly,
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The defendants neither proved nor offered to prove that there was any defense in fact to the action of Kahrs, or that the judgment exceeded the sum which Kahrs was entitled to recover against the sheriff, or that the agreement for the adjustment of the amount, or the consent to the entry of the judgment, was fraudulent or collusive. The appellants must fail on this appeal, unless they can maintain the proposition that the judgment against the sheriff furnished neither conclusive nor presumptive evidence of a breach of the condition of the bond, or in other words, that a judgment rendered by consent was not a judgment or adjudication within the meaning of the bond. The question is not free from difficulty, but we are of opinion that the judgment, in the absence of any evidence of fraud or collusion, or any suggestion that there was a defense to the action against the sheriff, although entered upon consent of the parties to the action, presumptively at least established the liability of the defendants. The defendants executed the bond at the request and for the accommodation of Dnbee. Its obvious purpose was to secure the sheriff against apprehended litigation as to the title to the property seized under the execution against Fischer. The bond was given to indemnify the sheriff against suits and judgments to which he should be a party growing out of that proceeding. The appellants did not make it a condition of their liability that they should have notice. They were satisfied that the sheriff should conduct litigations founded upon his seizure of the property without reserving any right of intervention. They committed the matter to his discretion, not indeed by express words, but by necessary implication. It is time that the sheriff was not in a legal sense the agent of the sureties to manage suits brought against him, but the sureties agreed that no judgments should be recovered against him therein. They did not limit the indemnity to judgments obtained upon an actual trial' or after a contest m court, and they did not undertake to divest the sheriff of the power incident to his position as a party, to settle and adjust litigations instituted against him in view of the exigencies of the situation. It might very well
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happen that a judgment founded upon a compromise or agreement without actual trial would best promote the interests of all concerned. Can it be affirmed, as a matter of law, that the conditions of the bond only covered judgments obtained upon hostile and adverse litigation, and that no discretion was left in the sheriff to consent to a judgment, although he believed that by so doing money would be saved to the parties ultimately liable ? This we think would be a too strict interpretation of the contract. But at the same time to hold that a judgment entered by consent of the parties, and without notice to or approval by the sureties, is, in the absence of proof of fraud or collusion, conclusive against them, would open the door to the perpetration of secret frauds and subject sureties to a most hazardous responsibility, and to the discretion and judgment of a third person, which might seriously imperil them. A judgment by default has been held to be covered by an indemnity against judgments.
(Lee
v.
Clarck,
The judgment should, therefore, be affirmed.
All concur, except Huger, Oh. J., not voting.
Judgment affirmed.