Steele v. Tutwiler , 68 Ala. 107 ( 1880 )

SOMERVILLE, J.

The statute provides, that bonds given by executors and administrators must have “ at least two sufficient sureties.”—Code (1876), § 2365. It further provides, that “ when any executor or administrator gives-a bond, which is not payable or conditioned as required by law, such bond is not void, but stands, on its condition being broken, subject to all the remedies which could have been maintained on such bond had the same been payable and conditioned as required by law.”—Code, § 2404,

The question is presented for our consideration in this case, whether an administrator’s bond with one surety only is subject to the summary remedy afforded against sureties by section 2619 of the Code, authorizing immediate execution against the surety on return of “ no property against the principal. Bonds are of two kinds; single bonds, and penal bonds. The bonds of elecutors and administrators are of the latter class, as are all official bonds of State, county, and other public officers. These writings obligatory, as they are technically called, consist of tivo essential partsfirst, the acknowledgment of an existing debt, payable in a sum and to a person such as the statute may prescribe , secondly, a condition, upon the compliance with which the acknowledgment is void.—Walker’s Amer. Law (7th Ed.), 469; 1 Bouv. Dict., tit. Bond.

The above section of the Code (§ 2404) is of simple and easy construction, if we keep this analysis prominently in view. Though not asserted with distinctness, it is clearly contemplated, that a bond irregularly taken must have been acted under by the principal, before it can be embraced within the provisions of this law ; otherwise, its condition could not be broken, and there could be no remedy upon it of any kind, either as a common-law or a statutory bond. And this is in harmony with the policy of section 181, in reference to official bonds, which, more than twenty years ago, was construed by this court in Sprowl v. Lawrence, 33 Ala. 674. We construe the phrase then, “ a bond, which is not payable or conditioned as prescribed by law,” as having reference to irregularities or ühperfections in both the body and the condition of the bond; and as there can be no legal bond at all without signatures, the statute has, also, necessary reference to any want of formality, or imperfection, in the execution or signing by the obligors.

It is true that a rigid and narrow construction might, by logical refinement, reach another and different conclusion. But this is a remedial statute, and it must be largely andben-' eficially construed, so as to suppress the mischief so obviously designed to be corrected, and tt> advance the remedy thus devised by the law-makers. The reasoning of the court in Sprowl v. Lawrence, supra, strongly corroborates this conclusion, and has been many times re-affirmed by this court in its construction of the similar section there discussed.

The execution under which the sale in this case was made, was voidable, for obvious irregularity, but not void. The Court of Probate, which issued it, was, as to all matters of administration, a court of general, and not of limited jurisdiction (Const. 1875, Art. VI, § 9); and every proper intendment will be indulged, to. sustain the exercise of its powers conferred in reference to such matters. Sound principles of public policy demand, that purchasers at judicial sales should have confidence in titles there acquired ; and in all cases of doubt, courts are wisely inclined not unnecessarily to disturb or unsettle them, Accordingly, it has been held, that an execution issued January 7th, 1842, and returnable, by mistake, to the first Monday in July, 1841, which was an impossible day, was only voidable.—Samples v. Walker, 9 Ala. 726. So, where a judgment was payable in installments, and an execution issued for the whole debt, before some of the installments were due.—Steele v. Platt, 5 Harring. 429. And, likewise, where an execution issued on a judgment which had been satisfied, without entry on the record (Boren v. McGehee, 6 Port. 432); or where it issuhd on a dormant judgment, after the time limited by statute (Morgan v. Evans, 72 Ill. 586, or 22 Amer. Rep. 154); or, where such execution issues prematurely, and contrary to the statute in this respect (Stewart v. Stoeker, 13 S. & R. 199). In all such cases, though the execution may be erroneous, and irregular, it must be respected and enforced, until vacated by motion to quash, or in some other manner prescribed by law. — Freeman on Ex. § 25.

And it is the duty of the party seeking to take advantage of irregularities or defects of this character, to move with proper diligence, at the earliest opportunity. Undue laches is treated as a waiver of the right, and operates as an irrovocable renunciation of it.—Freeman on Ex. §§ 76, 30. And after a delay of seven years in this case, without explanation or excuse, we think the motion comes.too late.—Henderson v. Foster, at the last term; Rule of Practice No. 13, Code p. 160.

The judgment of the Probate Court is affirmed.