36 Ky. 236 | Ky. Ct. App. | 1838
delivered the Opinion of the Court.
This bill was filed, in May, 1822, by Samuel L. Williams, for the pUrpose of enjoining all further proceedings against him upon a replevin bond executed by Levi L. odd, and the complainant, with others to John String fellow.
The bill states that Stringfellow , having obtained .a judgment against Todd, the latter executed a mortgage 0f ^gg s]aves and considerable personal property to the complainant and Thomas I. and Ashton Garrett, as
The record of the bill and proceedings thereon, referred to in the answer, are exhibited in this record, and show that the bill was filed in the names of all the sureties as complainants; who, alleging that there is great doubt whether, by the interference of Stringfellow in staying his first execution, their lien upon the mortgaged property is not released, and the property subject to other executions equal to its full value, in consequence of all which they claim that they are released— "state that the defendant has, nevertheless, sued out another execution on the replevy bond, against all the parties, and placed it in the sheriff’s hands, and will coex-ce the same unless prevented, &c. They therefore pray for an injunction restraining all further proceedings on said execution till the hearing, and that it may be then perpetuated.
An order for an injunction, according to the prayer of the bill, was obtained from two Justices of the Peace, and on the 19th of October, 1821, an injunction bond, purporting to be in the names of all the complainants, was executed by Ashton Garrett alone, of the principal parties, with Edward Stockton as his surety. This injunction was dissolved at the February term, 1822, of the Fayette Circuit Court, qyid at the March term, 1822, the bill was dismissed without prejudice.
It is proved that when this injunction, of October, 1821, took effect, the 'property mortgaged by Todd to his sureties, had been found subject to Stringfellow’s second execution, and was then hfeld subject to its satisfaction, for which it was deemed amply sufficient; that it would have been sold for that purpose had not the injunction intervened; but that this execution being enjoined, the property was sold for the satisfaction of other executions, then in the hands of the sheriff; and it appears from the allegations of the present bill, that when, after the dissolution of the first injunction, the executions which are now enjoined were issued, there was no property of Todd’s to be found. •
Upon this statement of the pleadings and evidence, the case, on the present bill scarcely admits of discussion.- It cannot be admitted that the mere act of staying the first execution, without any restriction upon the right of the creditor to issue a second one immediately, or as soon as he chose, either discharged the sureties or affected their mortgaged title. Its only immediate affect was to suspend the progress of the remedy. It did not suspend the creditor’s right of coercion; and therefore, did not affect the right of the sureties to compel or to make speedy payment; nor did it in itself materially alter the condition, or increase the risk, of the sureties. The legal title in the property which had been seized under the execution being in them, the stay did not, as in ordinary cases, operate to restore it to the control of the debtor', and thus to subject it to other executions against him. It remained in them upon the stay of the execution, for the benefit of themselves and the creditor, and to the extent of its value, at least, their obligation
If it were even conceded that, either in consequenee of the stay of the first execution, or by reason of the subsequent promise of a release, the sureties, as things then stood, should be considered as being equitably entitled to exoneration from their liability, we should still be of opinion that this equity was destroyed by ■ their
It is only necessary to add upon this branch of the case, that, although it may be true that the complainant,
Samuel Williams, did not actively co-operate in filing the first bill, or procuring the ‘injunction thereon, yet as he was in fact a party to the bill as complainant, and took the benefit of the injunction, without disavowing In Court the authority of those who used his name, and without having made any efforts to save the property, by means of his legal title, from being sold under other executions, and dissipated, while Stringfellow was prevented by the injunction from subjecting it to his own debt, he cannot, upon any safe principle, be exempted from the consequences of the act. Indeed, upon the face of the record, he is a party participant in it; and if he be not absolutely concluded by the record, there is no proof, but from his own private declarations, that he did not actually assent. He at least acquiesced, and is bound to the consequences. If, therefore, he ever had any equitable right to be released in consequence either .of the stay of the first execution, or of the subsequent promise of Stringfellow, that equity is destroyed by subsequent acts, in which he must be deemed actively or passively to have participated. If he had, as we have supposed, no such equity before the commission of those acts, they could not possibly have given him an equity against Stringfellow. In either case, therefore, whatever equity he may have against his co-sureties or any of them, he has none against the creditor which can affect his legal right to.proceed by execution on the replevy bond. It was consequently erroneous to perpetuate, the injunction.
Wherefore, the decree of the Circuit Court is reversed, and the cause remanded with instructions to render a decree dissolving the injunction on the original and supplemental bills, with damages, and dismissing said bills, with costs.