42 Mich. 412 | Mich. | 1880
Benjamin Atwood conveyed by warranty deed to J esse Turner certain premises upon which there was a water-power, a saw and grist mill, and received back a mortgage thereon to secure the purchase price thereof. He afterwards commenced proceedings in chancery for the foreclosure of this mortgage, and upon certain charges made in the bill, as to. the manner iy which the property was being used to the impairment ZÉ. his security, obtained an injunction restraining the defendants from the use and occupation of said mill.
On the 5th day of December following, the defendants in said cause, with Rynearson and others, executed a bond, being "the one sued upon and here in question, to the complainant, his heirs and assigns, in the sum of $5,000, reciting therein the pendency of such foreclosure proceedings, and the issuing of said injunction, and reciting, that “the said Atwood agrees to consent to the dissolution of said injunction, and to the use and operation of said mill and premises in the same manner as before said injunction by said Turners, upon delivery to him of this bond.” The condition of the bond was that if the obligors should pay Atwood the amount of any decree he might recover in such chancery suit, the bond should be void.
On the 12th day of December an order was entered in said chancery case,, in open court, reciting that a motion was made to dissolve the injunction, based upon, an answer and certain affidavits, together with this bond, and the counsel for the respective parties being present
A decree was afterwards obtained by the complainant, the defendants Turner appealed, and in this court the amount of the decree was very materially reduced, and the cause remanded to the court below, where a decree was entered in conformity with the order of this court. Under this decree the mortgaged premises were sold for a sum less than the amount of the decree, and the administrator of Atwood afterwards brought an action upon this bond to recover the deficiency, and recovered a judgment. Bynearson assigns error.
It has been urged that' there was no evidence that the bond was ever delivered or that Atwood consented to the dissolution; that the bond. Avas not one required either by the practice of the court or by statute, and that it could not be considered a voluntary common law bond; that the court must have dissolved the injunction or refused so to do, irrespective of this bond, and could not grant an' order dissolving the injunction on delivery of this bond.
No question is made but that the injunction stood dissolved in fact, and that the Turners used and operated the mill thereafter. The bond recites that Atwood had agreed to consent to the dissolution of the injunction upon delivery to him of the bond, and the order of the court in connection therewith does show that Atwood did consent to dissolution because of this bond. Whether this bond was one required by the statute or practice of the court or not, it would seem clear that the parties could agree to give and receive such security. No rule of law or of public policy forbids it. The defendants had been enjoined from using the mills. This, we must assume, was a benefit to the complainant and a corresponding injury to the defendants. This advantage the complainant was willing to forego if the defendants would secure him from loss on account of their use and opera
It is next claimed that the bond was conditioned to pay a certain decree, and that it could not be held applicable to a decree of the Supreme Court, or one rendered in accordance with the order of such court.
The bond was conditioned to pay “any decree which may be recovered by said Atwood in said suit.” It was well known to all the parties, including the sureties, at the time of the execution of this bond, that the decree of the circuit court would not be final, but that either party might appeal therefrom to the Supreme Court. On appeal the case is the same, and is heard upon pleadings and proofs in the same manner as it had been in the court below. On such hearing the decree made or ordered is such an one as should have been made in the court below. If an appeal and a change in the decree, either or both, would destroy the force and effect of such a bond, the defendants and obligors by an appeal could thereby defeat it. In Dunn v. Sutliff, 1 Mich., 24, a surety for costs in a justice’s court, where the case was appealed, was held liable for the costs in the appellate court. We think the principle is the same, and that the bond must be held as applicable to any final decree rendered in the case.
. It was also claimed that the appeal bond superseded this one, and that the complainant abandoned his remedy upon this bond by making a sale of the mortgaged premises under his decree.
The appeal bond, which in this case was designed merely to cover costs in this court, would not supersede'
The objection that the administrator could not sue upon this bond, because not named therein, is not well taken. In this respect he had the same right the deceased had. He in this, action represented the deceased, and no formal words were necessary in the bond to give this right, nor could the omission of the word “representative” exclude it.
The want of knowledge by the defendant of the prior encumbrance, at the time he signed this bond, would not avail him. It is not pretended that he was fraudulently induced to sign the bond by any act or word of the obligee, nor would the fact that this prior mortgage remained undischarged at the date of the sale, and that because' thereof and of the administrator’s refusal to indemnify Rynearson. against the same, in case he bid upon the property, release him of reduce his liability in an action on the bond.
We discover no error, and the judgment must be affirmed with costs.