106 Ala. 112 | Ala. | 1894
— The claim, which was sustained by the chancery court, that the sureties on the several claim bonds given by D. F. Myers, assignee &c., were dis
1. In respect of the first of these grounds, it is to be observed in the outset that the facts averred, strickly speaking, do not present an inquiry whether there was an unauthorized change by subsequent agreement between the plaintiffs and the claimant of the complainants’ contract of suretyship, but, if these facts involve any invalidating consequences to the bonds, it is by way of showing that the contingency upon which the sureties’ obligation was to become absolute has not transpired. That contingency was the finding by the court in the claim suits that the property as against the claimant was subject to the demands of the plaintiffs against Mullane, and the real position of the sureties is, not that anjr stipulation of their undertaking has been altered in any respect, but that there has not been that finding of the superiority of the plaintiffs’ claim to the property over that of their principal, Myers, upon which alone the liability from which they now seek to escape became fastened upon them. In determining the question, it is to be constantly borne in mind that Myers alone, on that side of the controversy, was a party to the record in each of the cases. Upon him devolved the duty and in him was the right to conduct and control the litigation to a final conclusion. And in this conduct and control of the claim suits, it was not only his right, but in a sense his duty, to make all such agreements as are usual and customary between parties to causes pending in the courts*
2. The further agreement as to assessment of the value of the property stands upon the same footing. In such cases, the property consisting of a large stock of
3. There is nothing in the position advanced by the sureties that the form of the judgments in the claim suits absolves them from responsibility on the several bonds. It is true the undertaking in each of the bonds is to “have the property forthcoming for the satisfaction of the judgment if it be found liable therefor, ” meaning the judgment for plaintiffs in attachment, and the condemnation is to liability to the ‘ ‘plaintiffs’ attachment” ; but judgment not having been rendered in the attachment suits, it was, we think, proper and sufficient to find and adjudge that the property was liable to the attachment. From this necessarily followed the subjection of the property to the judgment in attachment if and when it should be rendered. — Townsend v. Brooks, 76 Ala. 308.
4. The several attachments against Mullane were levied at different times on said stock of goods, the whole of which was taken into the sheriff’s possession under the first writ levied, and each successive levy was expressly made subject to all the attachments which had been previously levied. The aggregate of debts of the several attaching creditors of Mullane as reduced to judgments was largely in excess of the value of the property as as
5. Seeking this relief the complainants must do equity, and the final decree below should enforce the payment by them of the value of the property found in the claim suits, less such reasonable and necessary expenses incurred and paid by the claimant in selling the property as the sheriff would have incurred and paid had the claims not been interposed, and less also, of course, the. amounts that have been paid by Myers to the sheriff and to attaching creditors entitled thereto.
6. The sum paid by Myers to Mullane under the latter’s claim of exemption can not be taken into account. It was adjudged in the claim suits that Myers had no title to the goods, and those judgments, standing unreversed — affirmed in fact — by this court, forever foreclose that inquiry and settle the invalidity of his claim, and this though it was subsequently held by this court in a collateral proceeding that both the lower court and this erred in the rendition and affirmance, respectively, of said judgments. — Myers v. Conway, 90 Ala. 109; Frank v. Myers, 97 Ala. 437. So that Myers must now be considered the merest stranger wrongfully intermeddling with property which the attaching creditors had a right to subject to .their demands and by such intermeddling to have allowed Mullane to take a thousand dollars of the proceeds thereof under color of his right of exemption, when the property was under rightful attachment without any claim of exemption being made to the proper person — the sheriff— and, of consequence, without any opportunity being afforded the plaintiffs in the attachments to contest such claim. The sum thus paid by
Reversed and remanded.