Mead v. Figh

4 Ala. 279 | Ala. | 1842

ORMOND, J.

The complainants were sureties to a delivery bond, which being returned forfeited, and execution having issued -thereon, they seek to avoid the bond on the ground that the levy was fictitious, there being no such slave in existence as-the one described in the bond as having been levied on by the sheriff to satisfy Mead’s execution.

The Chancellor considered the return of the sheriff that he had levied on a slave which had no existence, as false and fraudulent, and that the forthcoming bond based on such a false levy was at least voidable.

We are not able to perceive the difference between a levy on the property of a stranger to the execution, or on property in which the defendant in execution has no interest, and a fictitious levy. In Syme v. Montague, [4 H. & M. 180,] it was held that the sureties to a forthcoming bond could not be relieved in equity on the ground that the defendant in execution was not the owner of the property levied on. The same principle was affirmed at the last term of this Court in the case of Jemison v. Cozzens, [3 Ala. Rep. 636,] where we held, that equity could not relieve a surety to a forthcoming bond which had been returned forfeited, on the ground that the slaves there levied on, were the separate property of the wife of the defendant in execution.

- If it could be shown that the defendant in execution had no title to the property levied on, and therefore his sureties should be relieved against the penalty of the bond, no reason is perceived why they should not be relieved pro tanto, if the property was not of value sufficient to satisfy the execution, and yet it is most obvious such an inquiry would not be per», mitted.

If it be conceded that a fictitious levy, like the present, is false and fraudulent, we are unable to see how the plaintiff in execution, who is no party to it, can be affected by it.

The law gives the defendant the right to suspend the collection of the money upon his doing certain acts, and it could not be tolerated that he should be permitted afterwards to say that these acts are not binding on him, because they assert a falsehood. His sureties can be in no better condition than he is, they are not only guarantors for the performance of the act he undertakes to perform, but must also be considered as sponsors for the truth of his declarations that such act may be performed.

We are therefore of opinion, that according to well established principles, as well as on grounds of public policy, the complainants are not entitled to the relief sought by the bill. The decree'of the Chancellor, therefore, perpetuating the injunction prayed for in the bilHs reversed, and this Court, proceeding -to render such decree as the Chancellor should have rendered, hereby orders and decrees, that the bill be dismissed.