103 Va. 117 | Va. | 1904
delivered the opinion of the court.
The principal question in this case is whether the sureties of Winfield Liggett, executor of E. W. Sibert, deceased, are bound by his alleged executorial bond. The bond was executed after the Code of 1887 had gone into effect, but instead of containing the waiver provided by section 177 of that Code, which was that such bonds should “contain as to the respective obligors a waiver ... of any claim or right to discharge any liability to the Commonwealth arising under said bond or by virtue of said office, post or trust, with coupons detached from bonds of the State.” It contained the waiver provided by an act approced August 26, 1884 (Acts 1884, pp. 24-5), which was that “as to all the obligors executing same ... a waiver of any claim, right or privilege to discharge any liability arising under said bond, or by virtue of said office or trust in any currency, funds, counter-claims or offsets, other than legal tender currency of the United States,” and which was no longer in force.
One of the contentions of the sureties is that the insertion in the bond of a waiver or condition not authorized by law rendered the bond invalid as a statutory bond.
The question involved in that contention has been carefully considered by this court and a different conclusion reached. In the case of Pratt v. Wright and Others, 13 Gratt. 175, 67 Am.
In Gibson v. Beckham, &c., 16 Gratt. 321, which involved,
Section 177 of the Code, which was the law in force when the bond in question was taken, merely describes the form and purport of the bond to be taken and does not declare that all other bonds not taken in the prescribed form shall be utterly void; and, as was said in Pratt v. Wright, &c., supra, approving and following U. S. v. Bradley, 10 Peters, 343, 9 L. Ed. 448, “it would be a mischievous interpretation of the act to hold that under such circumstances it was the intendment of the act that the bond should be void, and that it was a sufficient com
The covenant in the bond, by which the obligors waived any claim, right or privilege to discharge any liability arising under the said bond, or by virtue of said office or trust in any currency, funds, counter-claims or offsets other than legal tender currency of the United States, not being required by the statute, was not obligatory on the parties, and to that extent the bond is void, as a statutory bond, but the bond may be sued on so far as its conditions are in conformity to the act. The condition of the bond, that the executor “shall faithfully discharge the duties of his office,” and which is in conformity to the statute (Code, sec. Ill), is sufficiently broad to cover the breach or breaches alleged and proved, and upon which is based the decree complained of.
Having reached the conclusion that the bond, in so far as it contained conditions which were not authorized by law, was void, it follows that the contention of Yost, one of the sureties, who executed the bond by an attorney in fact, that he is not bound by the bond because its provisions were in excess of the power conferred, cannot be sustained. His power of attorney authorized his attorney in fact to execute for him, as one of the sureties of Liggett, “the bond required by the court.” The bond, so far as it is valid and effective, does not contain any provision or condition in excess of what the statute reqtdred, and what it was the duty of the court to insert in the bond. The act of the attorney in fact was therefore within the power conferred.
It is further insisted that the executor was “required by the court” to execute the bond in question as a condition precedent to his exercising the functions of his office; that it was there
The doctrine that contracts extorted colore officii are executed under legal duress and are therefore void, applies, we apprehend, only to contracts which the law does not require,, for such a bond stands not upon the statute but upon the voluntary consent of the obligor to assume obligations outside of the law; but where the law requires a bond with certain conditions to be inserted, the pressure of the court or officer demanding it'is not the pressure of official power, but the pressure of the law, and the party who has only complied -with a legal obligation will not be heard to say that he did not act voluntarily but under the compulsion of official power. If such a bond contain conditions or provisions in excess of the requirements of the statute, to that extent, as we have already seen, it is void, as a statutory bond, but so far as it contains conditions or provisions required by the statute, it must be regarded as voluntarily given, and will be enforced as a statutory bond pro tanto, unless the authorized and unauthorized conditions and provisions of the bond are so interwoven that they are not severable. .That the valid and invalid conditions and provisions of the bond under consideration are separable is clear. The valid condition of the bond is capable of being treated as a complete contract by itself.
We are of opinion that there is no error in the decree appealéd from, and that it should be affirmed.
Affirmed.