No. 2918 | Tex. | Feb 10, 1891
Appellee brought suit against Krall, Stasney, Frankel, and Marek to recover a sum of money claimed to be due and to foreclose a chattel mortgage on personal property given to secure it.
Subsequently appellee sued out a writ of sequestration on the ground that it feared defendants would injure the mortgaged property, and under the writ the property was seized.
Frankel, Stasney, and Marek replevied the property, appellants Grace, Frankel, Wittman, Morse, Kernole, and Dansby becoming their sureties. The bond given by them was for .$13 60—double the value of the property as assessed by the sheriff.
The sequestration bond, writ of sequestration, return of the sheriff thereon, and replevy bond were lost at the time of the trial, and plaint- 0 iff was allowed to substitute them, but in doing so the replevy bond was fixed at $1434, and the name of the surety Frankel was left off.
On October 9, 1889, a judgment was rendered in favor of the plaintiff against the defendants, and the statutory judgment on the substituted papers was also rendered against the sureties, other than Frankel, for $716.
Ho order of sale issued under the judgment, but an execution issued under which a levy was made on property of the surety Kernole, but he sued out an injunction to prevent the sale, in which he sought to vacate the judgment of October 9, 1889.
The lost papers having been found, on August 9, 1890, plaintiff instituted proceedings to amend the judgment, or to vacate it and to reinstate the case on the docket for trial; but this was resisted by the sureties on the replevy bond, mainly on the ground that the rights of the parties should be adjusted in the suit pending, in which Kernole was plaintiff and appellee defendant.
The sureties on the replevin bond then answered, and asked the court to require plaintiff to make Cole Brothers and E. H. Hull parties to the suit, or to continue the cause for the purpose of enabling them to do so.
The reasons for making Cole Brothers and Hull parties, as alleged in the answer, are thus stated in brief of their counsel: “ That Cole Brothers claimed a landlord's lien on the property upon which plaintiff sought to foreclose its mortgage and which it had sequestrated, and which had been replevied by defendants, appellants being the sureties on their replevy bond, which lien in favor of Cole Brothers was in existence as a valid subsisting lien when plaintiff's suit was filed, but was junior and subordinate to the lien of the mortgage declared upon by plaintiff. That Cole Brothers had brought suit in the County Court of Brazos County to enforce and foreclose their landlord's lien on said property. That E. H. Hull also held a mortgage on the said property which was junior and subordinate to the mortgage declared upon" by plaintiff. That the Hull mortgage was not in existence when plaintiff's suit was filed, but was in existence when the sequestration was sued out. That after plaintiff had sued out the sequestration, and after the property had been replevied by defendants, Hull brought suit in the County Court of Brazos County to foreclose his mortgage, sued out a writ of sequestration, and had it levied upon the said property. That said property, though it had been replevied by defendants from the writ of sequestration sued out by plaintiff in this case, was still in custodia legis by virtue of its seizure under plaintiff’s writ of sequestration, and was not subject to seizure by the writ of sequestration sued out by Hull in the County Court. That said property was in existence in the hands of the sheriff of Brazos County, subject to the control and jurisdiction of the District Court of said county, was of value sufficient to pay plaintiff's debt, was uninjured, and that appellants, as sureties on the replevy bond, desired to return it or have it returned to the said sheriff to satisfy the judgment that might be rendered in this case, but that said sheriff would not receive it, because he then held it by virtue of the writ of sequestration in the Hull case.
“That there was a combination between the plaintiff in this case and the defendants Stasney, Marek, and Frankel and Cole Brothers and E. H. Hull and their attorneys of record to subject said mortgaged property to said junior liens of Cole Brothers and Hull, and to deprive the sureties-on the replevy bond in this case (these appellants) of their statutory right to surrender said property to the sheriff and relieve themselves of their liability on said replevy bond.
“That the real defendants in this cause, Krall, Stasney, Frankel, and Marek, are all insolvent. For these reasons they say no judgment should be rendered against them as sureties on said replevy bond; but that if in
The sureties moved to quash the replevy bond on the ground that it was more onerous than the bond prescribed *in the statute, in that sequestration was sued out on affidavit that plaintiff “fears the said Frank Stasney, Wm. Fraukel, and V. 0. Marek will injure the said mortgaged property,” while the replevy bond was conditioned that the parties named “ will not injure or remove said property out of the county.”
lío question is raised here as to the power of the court below, under the proceedings had, to vacate its judgment rendered at a former term, but it is contended that it ought not to have done so, and should have required a full adjustment of the rights of all parties in the injunction suit instituted by Kernole.
The purpose of that suit was to restrain the sale of his property under execution issued on the judgment first rendered.
We are of opinion that it was not incumbent on appellee to call into the suit instituted by Kernole all the parties necessary to an adjudication of all rights existing between them and the defendants and the sureties on their replevin bond, and that whatever action was to be taken to correct the judgment entered through mistake was proper in this case, the purpose of which was to correct or set aside the first judgment entered in it. This was a proceeding directly for that purpose.
The statute regulating replevy bonds in sequestration cases seems to contemplate that the negative condition or conditions in the bond shall be only that the defendant will not do the particular act which the affidavit of sequestration states the plaintiff fears the defendant will do.
The affidavit in this case was that the plaintiff feared defendants would injure the property pending the suit,-and while the bond is conditioned that defendants will not do this, it is further conditioned that the defendants will not remove the property from the county.
The insertion of this condition would make the bond more onerous than the statute requires if the statute did not require other conditions which show that the makers of the bond can relieve themselves from liability on it for a breach of both of the negative conditions by the performance of
The bond must be conditioned that the defendant“ will have such property, with the value of the fruits, hire, or revenue thereof, forthcoming to abide the decision of the court, or that he will pay the value thereof and of the fruits, hire, or revenue of the same in case he should be condemned to do so.” Rev. Stats., art. 4499.
The judgment to be rendered against the makers of such a bond is “for the value of the property replevied, and the value of the fruits, hire, and revenues thereof, as the case may be.” Eev. Stats., art. 4501.
The obligors in such a bond may relieve themselves from so much of the judgment as is for the value of the property by delivering it uninjured to the sheriff within ten days after the rendition of the judgment. Rev. Stats., arts. 4502-4504.
If on breach of the negative condition not to remove the property from the county it be returned and delivered to the sheriff in condition and time prescribed by the statute, this satisfies the breach of this condition as well as the condition that the defendants would not injure the property.
From this it follows that the insertion of the two negative conditions did not impose on the bondsmen an obligation more onerous than would it had only one been inserted.
If the bond had contained a condition which would not be discharged by the same act that would be a compliance with the only negative con■dition that ought to have been inserted, then it ought to have been quashed and held inoperative; but as we have seen this it did not.
While Cole Brothers would have been proper parties defendant, a state of facts is not shown in which it was necessary to make them parties, nor is it shown that this was in any manner necessary for the protection of the sureties on replevin bond, who alone sought to have them made parties and prosecute this appeal.
Hull, it is conceded, acquired the lien which he is seeking to enforce pending this action, and it certainly was not necessary that he should be made a party under the general rules determining who are necessary parties to a suit to foreclose a mortgage.
It is claimed, however, that he is a necessary party in order that a decree may be entered requiring the sheriff to hold the property, now in his hands under Hulks sequestration, as though delivered by the sureties who prosecute this appeal. This seems to be based on the proposition that the property was in custodia leijis after replevied by the defendants in this suit, and therefore not subject to seizure under the writ of sequestration sued out by Hull.
The property was seized only for safe keeping, and while in the possession of the officer who seized it ivas in custodia legis, but when it was
The statute gives a defendant the right to return property replevied, but it does not, in terms, confer on sureties the right to have it returned; and in the absence of a law thus providing, or of some contract between principal and surety securing such a right, it is not seen on what ground the latter can claim it.
If the creditor has a lien on the property replevied, as in this case, the sureties, on payment of the debt to the extent of the value of the property, would be entitled to be subrogated to the creditors rights and might have it sold under process for their reimbursement.
Appellants pleaded no fact that would deny them such relief, and their averments of combination between appellee, their principals, and Hull are not such as to entitle them to any such relief as they seek on any ground recognized as sufficient in courts of equity.
The fact that the sheriff has possession of the property under a writ of sequestration sued out by Hull furnishes no reason why he should not receive it if it be in proper condition, and he be requested by the principals on the bond to do so in proper time, and thus the sureties be relieved from liability for its value.
Whether the sheriff should receive it if tendered would depend on the time of tender and the condition of the property at that time, and of the latter fact the sheriff would be the judge in the first instance.
We find no error in the judgment and it will be affirmed.
Affirmed.