40 Miss. 76 | Miss. | 1866
delivered the opinion of the court.
This bill was filed by the appellee, a surety for one Hudson, on a bond, against the distributees of the principal, to recover a sum of money paid by the appellee on account of that surety-ship, and certain costs and expenses incurred and paid by him in consequence of litigation carried on by him in relation to his liability.
The bill shows, that the appellee became surety on a bond for $2,405, executed by Hudson, in April, 1840, for the purchase money of certain property purchased at sheriff’s sale under execution by Hudson, which bond was executed under the valuation law, then in force, and was payable in twelve months from its date; that at April term, 1841, of the Circuit Court, a motion was made to quash the bond, but the motion was overruled, and that in October, 1841, an execution was issued on the bond against principal and surety, which was levied on certain property, but the execution was superseded, and a writ of error presented to this court to the judgment overruling the aforesaid motion to quash, and at January term, 1844, that judgment was affirmed in this court, and judgment was rendered here against the administrator of Hudson, who had died pending the writ of error, and against the surety on the bond. It further shows that, about the year 1849, Hudson’s estate was legally distributed by his administrator, to and
As to the legal costs incurred by the litigation, instituted by the principal in his lifetime, in which the surety was joined, and which were subsequently paid by the latter, there can be no doubt that such costs were properly recovered by the surety. And it is not controverted here that he was entitled to recover the sum of $3,000, paid by him by way of compromise of the execution. But it is insisted that' the decree is erroneous, in awarding to him the costs taxed, and the counsel fees paid by him on account of the litigation which he instituted and carried on after the death of the principal, and after the determination of the litigation instituted by him which was determined after his death.
It is well settled, and on sound reason, that a surety cannot charge his principal with costs and expenses unnecessa/rily incurred by litigation instituted and carried on by him in order to get rid of his liability or to defeat the efforts of the plaintiff to enforce it (Wynn v. Brooke, 5 Rawle, 106; Sedgwick on Damages, 291, 335); and it appears to be incumbent on the surety seeMng to recover costs and expenses from his principal,
Upon these principles, this decree cannot stand, as to the costs and expenses incurred subsequent to 1844. That litigation was entered into by the surety after the death of the principal, and after the litigation commenced by him had been determined and had resulted in a judgment of this court fully establishing the liability of the principal and surety, in a writ of error in which they were joined. There is no showing, either by the allegations of the bill, or by the proofs, that this litigation of the surety was undertaken upon any reasonable grounds of success, or with any view of protecting the interest of the principal; but it would rather appear to the contrary, as it was all unsuccessful, that it was resorted to as the means of preventing the enforcement of the execution against the surety.
It is said that it resulted in a benefit to the principal, because it enabled the surety to compromise and settle the sum due on the execution for about half its amount. But this does not appear to have been caused by the litigation conducted by the surety after the principal’s death; for that was all ended and the judgment was finally fixed for its full amount against the surety. It was not until execution on that judgment had been issued and levied on property claimed by Miller, the sale of which was enjoined by him, that the surety made the compromise.
It follows that the decree is erroneous and must be reversed, and that a decree must be made here, correcting these errors, in accordance with the views herein stated. And a new decree is ordered accordingly.