Rich v. Sowles, 65 Vt. 135

Rich v. Sowles

65 Vt. 135 | Vt. | 1893

TAFT, J.

The plaintiffs herein sued the defendant Sowles, and summoned one Fonda as trustee. Under R. L. §§ 1,084-8, the defendants in this action gave a bond, and the trustee was discharged. This suit is brought to enforce the bond. The defendants insist that no recovery can be had, as the condition is to pay any judgment recovered against Albert Sowles as administrator, and that the judgment was against him individually. The description of the defendant Sowles was the same in the writ, declaration, bond and judgment. The judgment was against Sowles personally, however he may have been described. As said by Ross, Ch. J., in the opinion in that case, 64 Vt. 408, “Rendering judgment against the defendant as administra- or did not make it a judgment to be enforced against the *137property of the estate, but to be enforced against the defendant’s own property.” The sureties are presumed to have known the general law of the land in respect of their assumed liabilities incurred by signing the bond, and must be held to pay any judgment rendered against the defendant in the action.

II. Was evidence admissible to show that the trustee was not liable, and thus defeat the present action? We hold it was not. The bond is conditioned to pay the judgment recovered against the principal defendant,' not to pay any sum for which the trustee might be held chargeable. Upon giving the bond and the discharge of the trustee, the liability of the latter became immaterial.

In Cross v. Richardson, 30 Vt. 641, the discharge of a trustee by agreement was held a sufficient- consideration to support a promise, although the trustee could not be held liable.

III. It is further urged that the bond is null, for that the justice had no power after the appeal to accept it and discharge the trustee ; and this upon the ground that after the appeal the suit was not pending before the justice, and that he had no jurisdiction therein. The plaintiffs in the suit in which the bond was given undoubtedly had the right to have the statute strictly followed, and unless so done might have had good ground for opposing the discharge of the trustee; but if they were satisfied with the discharge of the trustee, the defendants have no reason to complain. Having voluntarilj- executed the bond in consideration of the. ■discharge of the trustee, and by such means haying procured the discharge, it is difficult to see upon what ground it can be held invalid. We think it would be valid without the aid of the statute.

The ffidgment is affirmed.