Person v. Thornton , 86 Ala. 308 ( 1888 )

CLOPTON, J.

The bond, on which the action is founded, is conditioned as follows: “Whereas the said Alfred S. Person has filed his bill of complaint in the said Chancery Court, and has obtained thereon an order for the issuance of an injunction, from +he Hon. H. C. Speake, circuit judge, to restrain or enjoin Sarah J. Harland and James T. Harland, their agents and attorneys, from the further prosecution of the action of ejectment against your orator, said Alfred S. Person, for the recovery of an undivided one-half interest in the lots or parcels of land devised to him and Sarah J. Harland by the will of William H. Person, deceased; now, if the said Alfred S. Person, and W. H. Johnson.and J. C. Goodloe, or either of them, shall pay all damages which any person may sustain by suing out such injunction, if the same is dissolved, then this obligation to be void; otherwise to remain in full force.”

The original complaint was amended during the progress of the cause. The amendment substantially avers, that at the time the bill was filed, the fiat for the injunction obtained, the bond executed, and the injunction issued, there was pending in the Circuit Court of Colbert county an action at the suit of Sarah J. Harland, against Samuel Bhodes, Stephen Parker and Broden Greenhill, to recover the tract of land mentioned in the bond; that Person, having dispossessed her of her interest in the land, rented it to Bhodes, Parker and Greenhill, against whom the action was brought, they being in the actual possession; that Person employed counsel, and defended the suit, and claimed in open court that he was the landlord of the defendants in the suit, the real party defendant, and obtained one or more continuances on account of the sickness of himself or family; that there was no other pending suit in favor of J ames T. Harland, or Sarah J. Harland, or both of them, to recover any lands of any other person; and that the bill in chancery, on which the order for the injunction was made, was filed by Person, and the bond sued on was executed to procure an injunction, restraining them from the further prosecution of the suit above mentioned. The amendment further avers, that the injunction issued restraining them from the prosecution of the suit for the recovery of the land described, and that they were thereby restrained from its further prosecution. The dissolution of the injunction, and the special damages sustained by its issue, are also averred.

The first assignment of error relates to the ruling of the court sustaining a demurrrr to the first plea to the amended complaint. After craving oyer of the bond, and setting out a copy, the plea avers, that there is not, and never was, such suit as that recited in the bond, and that plaintiffs have sustained no damage by reason of the injunction. It is a well settled rule, of general application, that the admission of a fact in a bond, by recital or otherwise, estops the party executing the bond from asserting its non-existence. The obligors in a forthcoming replevy bond are estopped from denying the defendant’s title to the property levied on, or from asserting that the levy is fictitious; the sureties in an administration bond will not be allowed to deny the regularity of the appointment of their principal; and the obligors in a bond given to supersede a judgment, which has operated to suspend proceedings, are estopped from asserting that it did not operate as a supersedeas. — Mead v. Figh, 4 Ala. 279; Adler v. Potter, 57 Ala. 571; Savage v. Russell, 84 Ala. 103; Plowman v. Henderson, 59 Ala. 559; Kirkland v. Trott, 75 Ala. 324. In Willoughby v. Brooke, 1 Cro. Eliz. 756, decided as early as 1704, it was held, in an action of debt on an obligation which recited that certain suits had been commenced in the court of King’s Bench, that a plea, averring there was no such suit, was an ill plea, on the ground that the obligation estopped the defendant from saying that there was not any action there depending. These cases illustrate the general application of the rule. It has also been applied to injunction bonds. In Adams v. Olive, 57 Ala. 249, it was held, that in a suit on an injunction bond, the obligors, the principal having obtained the benefit of the delay, were not discharged, because the judge, who made the fiat, had no authority to make such order, and that they would not be allowed to take advantage of such want of authority. The bond sued on recites the pendency of an action against the principal obligor to recover particular lands, which action it is sought to enjoin. Such recital effectually estops the defendants from asserting there was no such, suit pending. — LeStrange v. Roche, 58 Md. 26; 2 Her. on Estop. § 633.

2. Tbe next assignment relates to tbe overruling bf a demurrer to the replication, filed by plaintiffs to tbe other special pleas of defendants. Tbe pleas aver, tbat no injunction was sued out or issued'to restrain plaintiffs, or either of them, from tbe prosecution of an action against Bhodes, Parker and Greenhill, or any other person, except tbe principal obligor, and tbat there was no suit pending against him. Tbe replication substantially alleges, in avoidance of tbe pleas, tbe same facts set forth in tbe amendment to tbe complaint. Several separate causes of demurrer are assigned ; but, when considered as a whole, they may be regarded as constituting one principal ground; which, is, tbat tbe replication seeks, by aliunde evidence, to contradict, vary or explain tbe recitals of tbe bond, and to show tbat it was given to enjoin a suit other than tbe one mentioned therein. When considered as an answer to tbe amended complaint, tbe effect of tbe pleas is, tbat tbe defendants are discharged from liability, on tbe ground tbat tbe bond is void, or ineffectual, in consequence of a misdescription as to tbe nominal parties in the suit, tbe prosecution of which was restrained.

Tbe demurrer presents tbe question, whether there is such variance between tbe recitals of tbe bond, and tbe suit actually pending, as to be incapable of identification by parol proof ? In considering this question, it should be observed, that tbe bond is sued on as a common-law obligation. Its stipulation is not to pay a judgment rendered, or which may be rendered, in a particular suit; such ás a bond to supersede, on appeal, a money judgment, or such as was sued on in tbe case of Hall v. Williamson, 9 Ohio St. 17. Tbe condition is, to pay any damages, which any person may sustain by suing out tbe injunction, if tbe same is dissolved. Tbe recital of tbe suit is not an essential part of tbe contract. It constitutes tbe consideration of tbe bond, tbe element of benefit to tbe promisor, and of detriment to tbe promisee. Though tbe obligors will not be allowed to disprove or deny tbe express consideration, in order to avoid liability on tbe bond, it is open to explanation, when tbe effect is not to add to, or vary tbe terms, or enlarge tbe scope of tbe contract. This principle is frequently found applied in respect to tbe consideration expressed in deeds. Steed v. Hinson, 76 Ala. 296. In Meredith v. Richardson, 10 Ala. 828, the suit was on a bond given for the delivery o£ cotton levied on under an execution issued against two persons, but as the property o£ only one of them. The bond recited the issuance of an execution against the latter, omitting the name of the other defendant, and for an amount different from that specified in the execution. It was held, that the obligors were estopped from denying the levy, and that the bond having been given as a common-law bond, the variance in omitting to set out the name of both defendants, and to conform the sums recited to the execution, are matters which may be supplied by parol evidence. Evidence aliunde makes apparent that there was but one pending suit to recover the lands specified in the bond, which involved the title of the principal obligor, and to which the recital in the bond could refer. The same character of proof may be received to show the circumstances under which the bond was made, and the injunction obtained, and to identify the subject-matter to which its recitals referred. — Chambers v. Ringstaff, 69 Ala. 140.

Tarleton & Pollard v. Johnson, 25 Ala. 300, was an action for the conversion of several bales of cotton. The plaintiff off erred in evidence the record of a former recovery in an action of detinue against third persons, to which the defendants objected, on the ground that they were neither parties nor privies. In aid of the record, the plaintiff was allowed to prove by parol evidence that the persons, against whom the detinue suit was brought, were the bailees of the defendants, and that they employed counsel, and assisted in the defense of the suit, and, after judgment, paid a portion of the assessed value of the cotton. The court held the record admissible for the plaintiff, and that parol evidence could be received, in aid of the record, to show defendants’ connection with the suit. The decision was rested on the principle, that the defendants were the real parties to the detinue' suit, and that courts of justice will always take notice of the real parties. Both the amendment to the complaint, and the replication, aver that the pending action of ejectment was to recover the same lands specified in the recitals of the bond; that the defendants to that action were the tenants of the principal obligor, and claimed no other title — only his title was involved in the suit. He employed counsel, and defended the suit, in the names of his tenants, and obtained one or more continuances on account of sickness of himself or He was the real tbougb. be bad not made bimself a party as landlord; and tbis was tbe action, tbe prosecution of wbicb was intended to be, and was in fact delayed. Tbe same degree of certainty and accuracy is not required in tbe recitals of a bond, as in its description in pleading.. It is sufficient if tbe court can ascertain, witb reasonable certainty, tbat tbey are tbe samet Tbe variance, in tbe names of tbe nominal defendants, and of tbe real defendant, is susceptible of explanation; and tbe averments of tbe amendment and replication sufficiently establish tbe identity of tbe suit. — Mitchell v. Ingraham, 38 Ala. 395; Dickson v. Bachelder, 21 Ala. 699.

The other assignment of error relates to tbe exclusion of tbe evidence of tbe clerk of tbe Circuit Court, by whom it was sought to prove tbat there was not, and bad never been, any action of ejectment in favor of tbe plaintiffs, or either of them, against Person, pending in the court. As tbe defendants will not be allowed to deny tbat there was such suit, tbey, of course, will not be permitted to prove its non-existence.

There are other exceptions, taken on tbe trial, wbicb appear in tbe record, but those considered are- tbe only ones assigned for error.

Affirmed.

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