Gibbs v. Frost

4 Ala. 720 | Ala. | 1843

ORMOND, J.

Several preliminary questions are presented, tvhich it will be proper to consider before entering on the merits of the case.

First — It is supposed by the counsel for the defendants in é'rror, that as this is a proceeding in Chancery, the liability df the plaintiffs in error will depend on different principles, from those which would govern if the question had been made at law. This view cannot be supported. The statute of this State has given to bonds, executed to supersede a judgmerit oh writ of error, and to many others of a kindred nature, upon forfeiture, the effect of a judgment. This forfeiture is declared éx parte, by the Clerk or sheriff, and execution issues thereon immediately. If, by being compelled to resort to a Court of Chancery to vacate a bond, by which a party is not bound, but to which the statute has given, prima facie, the force and effect of a judgment, he loses any right secured to him by the common law, the statute would be unconstitutional. This is the view which has always been relied on in this State, to support the statutes giving to these bonds the force of judgments, without a jury trial; as was held by this Court at the last term, in the case of Perkins v. Mayfield and wife. The question must, therefore, be considered here, as if it had arisen at law, upon the appropriate pleas.

Second — It is also maintained by the defendants’ counsel, that as the material allegations of the bill are denied, they must be established by the proof of two witnesses, or by one with corroborating circumstances. The rule is as stated, but does not apply where the defendant has no knowledge, and is not charged with having any knowledge, of the facts alledged; as where the bill is filed against an executor, upon allegations of facts not within his knowledge. In such a case, if he should venture to deny the allegations of the bill, the only effect of such denial, would he, to put the complainant on proof of the fact.

In this case the facts are not charged to be within the knowledge of the defendants, nor is it stated that they were privy to the acts of the Clerk. In their answer they admit they know nothing of the facts but from the information of their counsel. The answer was doubtless not intended as a denial of the facts stated in the bill, but rather as a denial of the conclusions of law adduced from the admitted facts. But be the intention what it might, it cannot, under the circumstances, bring the case within the rule which the counsel have invoked.

Third — The principal question in the cause is, whether the bond executed by the plaintiff in error, in blank, is operative as their deed ?

It is admitted that the skeleton, or mere office form, which was executed by them, is not obligatory as a writ of error bond, as many of the most essential parts of the bond were omitted at that time to be inserted; but it is contended that authority was given to the Clerk, by the parties to it, at the time of its execution to fill it up and perfect it. That this authority may be implied from the circumstances of the case, the object and purpose of the parties, and their consent at the time of its execution, that the instrument should subserve the purpose for which it was designed. That if wrong in this, the evidence shows that express authority was given to the Clerk to perfect the bond.

The counsel for the plaintiffs in error denies that express authority was given to the Clerk by the plaintiffs in error, to perfect the bond, but that such authority, if any exists must be implied; and that even if express authority was given to fill up the blanks, as the addition was a material part of the instrument, without which it could not operate as a bond, that it would avail nothing without a redelivery, which is not pretended to have taken place.

The only witness who has any knowledge of the facts relating to the execution of the bond, Price Williams, the Clerk, testifies, that several judgments had been obtained against one Lunsford, in his Court, among which was the one in favor of defendants in error. That Lunsford and the plaintiffs in error, as his intended sureties, came to his office, for the purpose of suing out writs of error to the Supreme Court, in all the cases, and executing bonds to supersede the executions which had issued on the judgments — that he commenced filling up the blank bonds, or printed forms kept in the office, when Luns-ford interposed, statinff that it was then late in the afternoon, and that he had to ride eighteen miles to Gainesville that night, to stop the sheriff from selling his property, and had not time to wait till the bonds could be filled up; and at his special instance and request, it was executed in blank, by him and by the plaintiffs in error, as his sureties, who were present at the time and interposed no objection, the whole matter passing in their presence and hearing. That in pursuance of the authority thus given, at a subsequent time time he filled up the blanks in the bond.

We think it impossible to doubt that this was not an express authority on the part of Lunsford to the Clerk, to perfect the bond by filling the blanks, and the only question on this part of the case is, whether it was also an express authority conferred by his sureties. In our opinion it was. When two or more persons have a common object in view, the declarations of one in the presence and hearing of all, in furtherance of the common purpose, and uncontradicted by them, must be con-sideredas the declarations of all.

It could subserve no rational purpose in such a case to require each of the contracting parties to repeat over what one had just said on behalf of all, to which there was no dissent, but to which they all assented, by carrying the proposed design into effect, so far as their co-operation was necessary. Nor in the ordinary concerns and business of life would such a senseless repetition ever be resorted to,or required. The rules of evidence are practical, and founded upon the usual and customary conduct of men in the ordinary pursuits and business of life. Judged by these rules, we are satisfied that the parties intended at the time to be understood by the Clerk, as speaking through Lunsford, their principal, and when the proposition was assented to by the Clerk, they showed their unr derstanding of it, by carrying it into eifect on their part.

Considering then, as we do, that there was an express authority delegated to the Clerk to perfect the bonds by filling them, we are next to inquire whether a bond so filled up, is binding on the obligors as their deed, without any further act on their part.

Without entering on the inquiry, whether an authority t<? alter a bond in a material part, may not be implied from circumstances, we are satisfied that the authorities cited by the counsel for the defendant in error, establish beyond all doubt, that a bond may be altered in a material part by the authority of the obligor expressly given for that purpose, and that such authority may be by parol. The question is most elaborately considered by C. J. Marshall, in the case of The United States v. Nelson and Myers, [2 Brockenbrough, 64,] in which the leading English and American cases are considered, and he atr tains the conclusion that a bond may be altered by the express authority of the parties to be bound thereby, but that such consent cannot be implied. See also, Wiley v. Moore, 17 Ser. & Rawle, 438 ; Wooley v. Constant, 4 Johns. 54. Speake v. The U. States, 9 Cranch, 28 ; 6 Cowen, 59; Ex parte Decker, Boardman v. Gow & Williams, 1 Stewart, 517; to which a great many other cases might be added.

It was,however,strenuously maintained,that after such altOi-ation of a deed, by express authority, there must be aredelive-ry, and as no deed can take effect without delivery, aitch is doubtless the law. The fact of delivery, however is usually inferred from other circumstances. It rarely happens that when a deed is delivered, it is formally placed in the hands pf the obligee, with the declaration that it is delivered. The mere permission of the obligor to the taking possession of the deed by the obligee, is a delivery, and is so laid down in the books. When, therefore, an authority in conferred on one to perfect a deed by filling it up, he must of necessity have the power of consummating the act by a delivery, otherwise his authority is nugatory. Thus in one of the oldest cases on this subject, Texira v. Evans, cited and relied on in Master v. Miller, [1 Anstruther, 229,] the point appears to have been thus ruled. The case is thus stated — Evans wanted to borrow four hundred pounds, or so much of it as his credit would be able to raise ; for this purpose he executed a bond with blanks for the name and sum, and sent an agent to raise money on the bonds. Texira lent two hundred pounds upon it, and the agent accordingly filled up the blanks with that sum, and Tex-ira1 s name, and delivered the bond to him. On non est fac-tum, Lord Mansfield held it a good deed. We do not learn from the case that there was an express authority to deliver the deed, but that it was implied or perhaps to speak more correctly, included in the general power, as otherwise the power could not be effectuated.

It appears further from the testimony of Mr. Williams, that one of the plaintiffs in error, a'day or two after the blank bond was executed, called on him, and for himself and on behalf of his co-surety, requested that his bond should not be filled up, which the Clerk declined to accede to, considering the bond in its then condition, as obligatory as when perfected by filling up; and had in consequence sent the sheriff a statement that the executions were superseded, and that he had no further power-over the subject, except to complete the bond.

A parol power to do an act may be revoked by parol before it is executed; nor was it contended that the authority conferred on the Clerk by the plaintiffs in error, to perfect the bond, was in its nature irrevocable; but it was argued that as the Clerk had commenced the execution of the power, by notifying the sheriff'that the execution was superseded, whereby the defendants in error were prejudiced, the power of revocation was gone. This position is doubtless correct, if the facts are as the. argument supposes. But the supersedeas is not the act of the Clerk, but the legal consequence of the bond. The statute declares that when bond and security are given according to law, the writ of error shall operate as a supersedeas. [Aik. Dig. 255, §8.] Until the Clerk executed the power conferred on him, by filling up and perfecting the bond, it was a nullity* and could not in any manner affect the execution. The argument that the premature action of the Clerk, notifying the sheriff that the execution was superseded, was a commencement of the execution of the power, can only be supported on the idea that the bond in its imperfect state was operative,because the Clerk had the power to perfect it; or in other words, that the mere power to execute the bond, was, in law, the bond. Whether the bond would not have related back to the time when the blanks were executed, if the power had been exercised before it was countermanded, it is not necessary now to determine ; but the power having been revoked before it was exercised, is as if it never had existed.

Much has been said in the argument about the consequences of a decision in this case, against the validity of the bond. If it be true, as supposed, that our Clerks are in the practice of superseding executions on blank bonds, it is time they were distinctly admonished that such a practice is without legal authority, and that they consult their safety and security only by keeping within the pale of the law. The consequences to which a position may lead may be, and frequently is, persuasive of its unsoundness; but when the law is plain and undoubted, we cannot hesitate to enforce it, from an apprehension of the consequences which may result from its having-been disregarded.

4. It remains to consider whether the Clerk” should have been made a party to the bill.

In the case of Lockhart v. McElroy, at the present term, we held that for any abuse of the process of the Court, the Courts of common law could render summary justice upon equitable principles, on motion, and to attain the object, might supersede the execution during vacation. But in a case like the present, such relief could not with propriety be granted. The Clerk is directly interested in this controversy, and complete justice cannot be done unless all parties in interest, or who are responsible, are before the Court, as otherwise they are not concluded by the litigation. This point was thus ruled in the case of Brooks v. Harrison, [2 Ala. Rep. 209,] a case which cannot be distinguished from this.

■ But the bill should not have been dismissed for this cause, but permitted to stand over, that the Clerk might be made a party. The decree .of the Chancellor dismissing the bill must be therefore reversed, and the cause remanded for further proceedings. But this is not considered a proper case for costs; each party will therefore pay his own costs in this Court.