Bartlett v. Doe ex dem. Gayle , 6 Ala. 305 ( 1844 )

COLLIER, C. J.-

-The only question necessary to be considered in this case, is, whether the order for an injunction made upon the bill of Mrs Lang, and the execution of a bond by her with sureties, suspended the lien of the judgment in favor of the plaintiffs below against McRae, as the surviving partner of Lang, until the injunction was dissolved? It has been repeatedly held,, as well by ourselves as our predecessors, that the effect of an injunction regularly issued upon the execution of a bond with surety, by the defendant in the judgment, is to destroy the lien of the execution injoined. [Mansony and Hurtell v. The U. S. Bank and its assignees, 4 Ala. Rep. 750, and cases there cited.] So, where an execution is superseded, by giving bond with surety upon suing out a writ of error, the lien of the judgment is discharged. [Campbell, use, &c. v. Spence, et al. 4 Ala. Rep. 543.]—But the lien is not impaired by the execution of a replevy bond, forthcoming bond, or a bond to try the right of property, id; [Mills v. Williams, et al. 2 Stew’t & P. Rep. 390; McRae and Augustin v. McLean, 3 Porter’s Rep. 138.]

It is insisted for the plaintiff in error, that a judgment only operates a lion upon the lands of the party against whom it is recovered so long as it may be enforced by execution; and that the injunction restraining all proceedings as to the premises in question, relieved them from the lien of the judgment. [See Mansony and Hurtell v. The U. S. Bank, &c. ut supra; Wood v. Gary, 5 Ala. Rep. 43.] The principle upon which an injunction has been held to discharge the lien of a judgment or execution, is, that the bond which the complainant executes, furnishes the plaintiff with another security for his debt; and upon which he may, after the injunction is dissolved, have an execution. [Conway v. Jett, 1 Martin & Y. Rep. 373; Smith, et al. v. Everly, et al. 4 How. Rep. 178; Clay’s Dig. 357, § 79.] Now the condition of the bond in the case before us, is, that the complainant “shall pay and satisfy all damages which the said defendants may sustain by the wrongful suing out of the said injunction.” It is perfectly clear that the undertaking of the obligors does not oblige them to pay and satisfy the judgment, if the bill for an injunction shall be unsuccessfully prosecuted; it merely binds them to make good any loss which the obligees sustained by reason of the groundless exhibition of the bill. Thus, if the property depreciated in value during the period that the injunction continued in force, by the burning of houses, &c. so that the plaintiff could not obtain satisfaction of his execution; in such case, the plaintiffs in the judgment may resort to their remedy upon the bond. But if the property continues of value sufficient to satisfy the judgment, the plaintiffs have sustained no damage for which they can charge the sureties in the bond; as for the delay in its collection, the law regards the interest as an equivalent for that.

Upon this point, the case of Hanley v. Wallace, [3 B. Monr. Rep. 184,] is a direct authority for the plaintiffs in error. The court there say, where a judgment is injoined at the suit of a stranger to it, and an injunction bond given by him to restrain the sale of a particular article of pi’operty; whatever may he the condition of the bond, it operates in equity, only as a security to the obli-gee for the injury that may accrue, not for the amount of the debt. Here the law is laid down in stronger terms than the condition of the bond in the present case requires.

It may also be remarked that no execution can be issued upon the bond; 1. Because it does not injoin the judgment, but only proceedings thereon, as it respects the premises in controversy. 2. Because the defendant at law is not the complainant in equity.

From this view it results, that the lien of the judgment is paramount to that of the deed of trust: The consequence is, that the decision of the circuit court upon the facts is erroneous — its judgment is, therefore, reversed, and the cause remanded, if the defendant in error desires it.