11 Tex. 417 | Tex. | 1854
The main question, and perhaps the only one, presented for our consideration, is the validity of the bond of indemnity given by the defendant. The defendant, Elies, had obtained a writ of execution from the Probate Court, directed to the Sheriff of the county of Harris, to seize the personal effects of one Knight, to satisfy the amount due from Knight, on the foreclosure of a mortgage lien upon the property to be seized. This execution was placed in the hands of Fitzgerald, at that time Sheriff of the county of Harris, to be executed. The latter not being satisfied in his own mind, that the execution was legal, nor that the property levied on was the property of Knight, on advice, required and obtained the bond of Elies, with Nichols and Euthven as securities, to indemnify him against damages that might be recovered against him by Knight, on account of this transaction. Suit was instituted by Knight, for an alleged trespass by Fitzgerald in making the seizure of his goods, and prosecuted to a verdict and judgment for $2,600; and it is in proof in this case, that eight hundred and fifty dollars of the judgment had been paid, by the agent of Fitzgerald, after a levy of execution. That Elies had notice of the pendency of the suit, and had counsel attending to it for him, there is not the slightest ground to doubt. The consequences of such notice may perhaps be considered in another place; it is dismissed for the present.—
The appellant has challenged the validity of the bond: First, That it is void, because that the consideration upon which it was founded, was to do an illegal act, because if the execution was a nullity, to execute it would be a trespass; and Secondly, If the execution was valid, he was bound to execute it, and a bond to indemnify him for doing what the law required him to do, is void. As general propositions these may be true; but if they are to be taken without any qualifying restrictions, Sheriffs would be placed in a perilous position, worse than stearing between Scylla and Charybdis, because, by refusing to enter the strait, they would be drawn within the vortex of another whirlpool, the action of the plaintiff in the execution, for not entering the pass. The plaintiff would have his action against the Sheriff for failing to execute the process; and it is obvious that he might be ruined by such litigation, if, under such circumstances, no indemnity bond would be valid, whether the execution was valid or not. One exception, or qualification, is admitted by the counsel; that is, if the illegal act has been committed, and not to be done, at the time the bond of indemnity is given, that it is valid against the party proving the unlawful act to be done. This has been often decided to be the law. (Story on Contracts, 541, 575 and note.) The appellant insists, however, that the bond in this case was not given for the past illegal act, but for an act subsequently to be done. In this we believe he is clearly mistaken; the bond, on its face, affords satisfactory evidence that it was taken and executed subsequent to the supposed trespass, arising from the seizure of the property under the process. It contains, among other recitals, the following: “ And whereas by virtue of the writ of execution or order of “sale aforesaid, certain drugs, medicine, furniture and fix- “ tures, have been levied upon.” It is true, that the recitals in a deed are not always evidence, and it is peculiarly so, when another deed is recited; such recital is not evidence of the
So far as the validity of the bond is concerned, we might stop here; but other questions have arisen, upon the record, that renders it proper that we should further discuss the rule of law, that a contract of indemnity, to do an unlawful act, is illegal and void. We have before admitted the proposition to be law, and referred to the extreme hardship that might arise from its enforcement, without any qualification. It would seem to be so very hard, and unreasonable, to hold a Sheriff who is disposed to act fairly, and honestly to discharge his duty, responsible for a mistake, and not permit him to secure himself against liability for an act honestly done, by a contract of indemnity, with the person at whose instance he has incurred such liability, that it would be assented to with hesitation and great reluctance. In this case an execution, issued from the Probate Court, having on its face, all that the law required as to form, was put into the hands of the Sheriff, for execution. Eminent counsel assure him that there is no doubt of its validity, and others, enjoying equal distinction, advising him that the Probate Court had no authority to issue the process, and warning him that he had better ask an indemnity. Under such circumstances, that he should have (in the language of the recital in the deed) “in his own mind doubts,” (and these last words put in by the counsel for the plaintiff in the execution, by way, it would seem, of protestation against any one else having such doubts,) is not at all remark
The rule of law, we have been examining is not, however, to be regarded so inexorable as to admit of no modification ; but that it is only a general rule, and like all general rules-, implies that there may be exceptions or modifications to it; and that on sound principles of law, more equitable rules, better defining the liabilities of Sheriffs, without repudiating any known rule of law, can be laid down. The whole doctrine on the subject of illegal contracts, is based upon the hypothesis that the illegality and consequently the wrong, is known to-be wrong, at the time the party takes the indemnity for doing the act. If the indemnity is to the doing an act, known before it is done, to be contrary to law, the contract so tainted would be void; and the doer of the act is left to meet all the consequences of such wrongful act, as an appropriate punishment for the wilfull commission of the wrong. If the face of the process, when put into the hands of the Sheriff, shows clearly that it is void, he is bound to notice such obvious and palpable defects; and if he executes it, it is at his own peril
The rule of law, that a contract to indemnify for doing an illegal act, is void, must be subject to the qualification that the act is known to be illegal at the time of entering into the contract.
The principles we have discussed, and our conclusions, are believed to be supported by legitimate deductions from a(j_
In the Court below, the Judge charged the jury “ that it “ made no difference whether the bond sued on was given to “ plaintiff, before or after the levy of the process; in either “ event it was obligatory.” This charge presents no erroneous proposition in law, when applied to the case before the Court. It certainly made no difference, if the Sheriff" did not know that the process was void, when he took the bond; whether it was taken before or after the levy, it was valid.
The Court further charged the jury, “ that whether the pro~ “ cess, under which the plaintiff acted, and which was made “ the basis of the recovery by J. D. Knight against plaintiff, “ was valid or not, so far as the purposes of this suit are con- “ cerned, if there has been a recovery of damages against “ plaintiff in consequence of executing said process, the plain- “ tiff has good right to sue upon the bond of indemnity.” The doctrine is believed to be settled, that where there has been a suit against the person for doing the act, and a judgment for damages recovered against him, when suit is afterwards brought on the contract of indemnity, for the reimbursement of the damages, the legality of the act which was the basis of the action for damages, cannot be again inquired into, especially where the indemnifier had notice of the suit for damages, which, if recovered, he was bound to make good.
In Duffield v. Scott, 3 Term R. 374, Mr. Justice Buller says, “ If a demand be made, which the party indemnifying is bound “ to pay, and notice be given to him, and he refuse to defend “ the action, in consequence of which the person indemnified “ is obliged to pay the demand, that is equivalent to a judg“ment, and estops the other party from saying that the de- “ fendant in the first action was not bound to pay the money.”
It is believed, however, if there had been no notice of the pendency of the first action, it would have devolved upon the plaintiff to show that the damages were fair in amount, and could not have been successfully resisted. (See Stone v. Hooker, 9 Cow. R. 154; Andrus v. Bealls, Id. 693.)
We have before said, that there could be no doubt that the defendant, lilies, had notice of the suit of Knight v. Fitzgerald : the notice is positively proven; and there is record evi
There is nothing in the objection that Fitzgerald did not take the case up to the Supreme Court for revision; it is enough if he did not prevent lilies from taking it up; and it is shown that no impediment was offered by the defendant in that action : and further, according to our practice, lilies could have come into the action as a party defendant, and controlled the case himself, he being the party most interested under his bond of indemnity. The judgment is affirmed.
Judgment affirmed.