33 Miss. 173 | Miss. | 1857
delivered the opinion of the court.
The bill in this case states in substance that the complainants recovered a judgment at law in October, 1839, for $774 74, against Davis, executor of one Lucy, upon which a forthcoming bond was executed, with George R. Weathersby as surety, which was forfeited in May, 1840, and execution issued thereon, which was levied on slaves, which were valued under the valuation law, and a bond thereupon executed for the delivery of the property in twelve months after its date; this bond was forfeited in December, 1841, and an execution issued thereon against the obligors, Davis as executor, and Mary Weathersby, Tenncll, and Moore, individually, to May Term,
The bill states that Tennell and Moore are believed to be dead, and that the complainants do not know whether they have any representatives, and prays an account and decree against Davis and George R. and Mary Weathersby, and that they be enjoined from further proceedings upon the supersedeas, and from setting up the Statute of Limitations as a bar to said execution.
The defendants filed a demurrer, which was overruled, and the case is thereupon brought here.
The first objection to the bill which we will notice is, that it does not seek a recovery against Davis, as executor of the estate of Lucy, but proceeds against him and the other obligors to the bond individually, these parties being sureties, and only liable when the money cannot be made from the estate of their principal; and that the bill is defective because the executor is not made a party.
It appears by the bill that the execution enjoined (in consequence of which the alleged injury has arisen), was against Davis as executor, and also in his individual capacity as a surety. When it is said, then, that the “ said Davis” obtained an injunction restraining the execution, it must be intended that he did so in both
Another objection is that Tennell and Moore, the co-sureties, are not made parties. The bill states that the complainants are informed that they are dead, and that their representatives, if they have any, are not known to them. This is prima facie a sufficient reason for omitting them from the bill. But no injury is done to the defendants by the omission. Each defendant is severally liable to pay the judgment, if liable at all; and the plaintiff has the right to enforce it against any one of them, being only bound to proceed first against the estate of the principal, if sufficient to pay it. If he collects the money from one of the sureties now sued, the omission of a surety in this bill would not impair the claim of the surety making the payment for contribution against his co-surety. No injury is, therefore, done to the defendants by the omission of the other sureties.
The next objection urged in support of the demurrer is, that it does not appear by the bill, but that the complainants have an ample remedy at law for the recovery of their debt, by suit upon the injunction bond, which was required by law to be given upon obtaining the injunction. Under the practice formerly prevailing, executors were not required to give injunction bonds; and from the allegations of the bill, which are admitted by the demurrer, it must be taken, either t'hat no bond was given, or that it is insufficient ; for the averment is, that the complainants are “ wholly without remedy at law.” Nor can it be said that there is a remedy upon the bond of Davis, as executor; for, upon no sound principle could that bond.be held as a security for the prosecution of an injunction suit. And as to the remedy upon the appeal bond, it is
Again, it is objected that, as the principle upon which the bill is founded, only debars a party of the benefit of an advantage which he has obtained by unfounded and unconscientious litigation, none but the direct and active parties, who have carried on the litigation, can be charged on account of it; and therefore if the litigation was carried on by Davis, as executor, neither he, in his individual capacity, nor the other defendants to the judgment enjoined, not being direct parties to that suit, should be charged with the debt which has been unjustly defeated by that litigation. This position cannot be sanctioned. It can have no force as to Davis, because what he did as executor, he must necessarily have sanctioned and co-operated in, as surety, and the consequence of his litigation, as executor, was to prevent execution of the same judgment against him as surety. As to the other sureties, they were in privity with the principal, and are bound to all the legal consequences of his acts. The judgment was enjoined as to them, as well as to the principal, and they should suffer the loss which they have enabled their principal to occasion to the complainants.
Another-ground of objection is, that the exhibit to the bill showing the judgment under which the complainants claim, does not show that a valid judgment was entered. It appears that a verdict was duly returned, assessing the plaintiff’s damages, and that the words immediately following the verdict, do not state that it “was considered by the court that the plaintiff recover.” It is manifest, from the entry, that there was a clerical omission in this, for otherwise, the words immediately following would be unmeaning. Great indulgence is extended to clerical misprisions; and where they have been acquiesced in for a great length of time, the omission or inaccuracy, if it reasonably appear what was intended, will be supplied by intendment. In this case, the defendant has acquiesced in the fact that a judgment was rendered, for a great length of time, and has actually recognized it as a judgment in all the protracted litigation which he has carried on. By obtaining his injunction, he waived and released all -errors at law in the record. Besides the legal intendment in favor of the record, he cannot now,
The last ground of error insisted upon is, that the bill is not maintainable as to George R. Weathersby.
It appears that George R. Weathersby was not a party defendant to the judgment enjoined, the judgment against him having been satisfied by the execution and forfeiture of the valuation bond, to which he was not a party. The demurrer should, therefore, have been sustained, and the bill dismissed, as to him.
As to the general equity upon which the bill proceeds, we consider the rule well founded in principle and sanctioned by authority, that when a party has been deprived of his legal right by unfounded and unconscientious litigation, and is without legal remedy, he may come into equity and enjoin the adverse party from availing himself of the advantage which he has obtained, and may if necessary have a decree securing to him the benefit of the legal right, which he has lost by the unjustifiable conduct of the adverse party. And in this view, the general equity of the bill was properly sustained by the chancellor. 2 Story’s Eq. Jur. § 1316 a; Suggv. Thrasher, 30 Miss. 135.
The decree is reversed, and the bill dismissed as to George R. Weathersby, and it is affirmed as to the other defendants, who are decreed to pay the costs of the appeal, and to answer the bill within sixty days.