Ray v. McDevitt , 126 Mich. 417 ( 1901 )

Long, J.

Plaintiff brought this action as assignee of Charles C. Bloomfield, Theodore A. King, and Henrietta Watts, administratrix of the estate of John W. Watts, deceased, against the defendants, upon a bond of indemnity. The declaration alleges substantially:

1. The filing of an official bond by Mark H. Ray, as sheriff of Jackson county, with Charles C. Bloomfield, Theodore A. King, and John W. Watts as sureties.

2. The recovery by Zenas R. Wright, in the Jackson circuit court, of a judgment against Will Beach, John McDevitt, and Edward C. Morrissey, which judgment was on October 10, 1890, affirmed by the Supreme Court. Wright v. Beach, 82 Mich. 469 (46 N. W. 673).

3. The issuing of an execution upon such judgment, and delivery of the same to said Mark H. Ray, sheriff, wherein and whereby he was commanded that out of the goods and chattels of said Will Beach, John McDevitt, and Edward C. Morrissey, defendants, and for want thereof then of their lands and tenements, he should cause to be made the said damages and costs aforesaid.

4. That McDevitt and Morrissey, claiming that said judgment was against them as sureties on Beach’s appeal bond, and that the execution was void as against them because the same was not issued seasonably, and within 30 days from the time when the same was legally issuable, notified the sheriff not to levy the same, and, for the purpose of avoiding a levy and testing the legality of the execution, gave to the sheriff an indemnity bond, which, after reciting the facts leading up to and including the delivery of the bond to the sheriff, reads as follows:

“Whereas, no property belonging to said defendant [Beach] can be found within said county, and said John McDevitt and Edward C. Morrissey, through their attorney, Richard Price, have notified Ray that he must not levy said execution upon the property of said sureties, because •of the fact that the same issued more than 30 days from the time when the same was legally issuable, and the said sureties desire to test the legal right of said plaintiff to cause said execution to be levied upon their property:

“Therefore, the conditions of this obligation are such that, if the said John McDevitt and Edward C. Morrissey shall well and truly keep and bear harmless and indemnify the said Mark H. Ray of and from all harm, let, trouble, damage, costs, suits, actions, judgments, and executions that shall or may at any time arise, come, or be brought against him for refusing to levy said execution upon the property of said sureties, then this obligation to be void; •otherwise of force.”

5. That, upon the execution and delivery of said bond, said Mark H. Ray, sheriff, returned said execution to said circuit court without having made the levy thereunder, and without collecting the damages and costs aforesaid, or any part thereof.

6. That said sheriff, Mark H. Ray, died; and after his death an action was brought against the sureties on his official bond, which, on the death of Watts, one of said sureties, was revived against Bloomfield and King, and judgment rendered against them in the Supreme Court. Wright v. King, 107 Mich. 660 (65 N. W. 556).

7. That execution was issued on the last judgment, the amount of which was paid by Bloomfield, and Bloomfield and King became subrogated to all the rights of Sheriff Ray under the indemnity bond.

8. That plaintiff reimbursed Bloomfield, and Bloomfield, King, and Henrietta Watts, administratrix of the estate of John W. Watts, assigned all their rights under said bond of indemnity to plaintiff.

9. That, by reason of the premises, plaintiff became entitled to maintain an action on said bond of indemnity against defendants for the recovery of the amount paid by him on said assignment.

The declaration also contains the common counts, but all claim under these counts was waived, and the right to recover based upon the special count.

Defendants demurred to this declaration on the grounds:

1. That the agreement to indemnify was illegal and void, as having for its object a violation of the public duty of the sheriff.

3. That the circuit court had no jurisdiction of the action.

3. That the agreement was not assignable in the manner set forth in the declaration, and plaintiff had no right of action thereon.

The demurrer was overruled in the court below, and judgment rendered for the plaintiff on said special count. Defendants bring error.

It is the claim of the defendants that the bond declared upon is void both at common law and under the Michigan statutes. A number of authorities are cited by counsel to sustain the proposition that an agreement by a third party to indemnify an officer for neglecting his duty in the service of process, being founded on an illegal consideration, is void at the common law. It is claimed, on the other hand, by counsel for plaintiff, that this case differs from those cited, in that the parties who entered into the agreement are the debtors, or parties against whom the execution in the hands of the sheriff ran, and that they were directly interested in preventing a levy upon their property. It is also contended by counsel for plaintiff that the cases cited by counsel as directly affecting the action of the sheriff relate to capias, or other process, by which the sheriff was directed to take the body of the debtor in execution; that the acts in these cases were violations of the statutes which relate to the taking of the body of the debtor. The cases relied upon by defendants’ counsel are: Hodsdon v. Wilkins, 7 Greenl. 113 (20 Am. Dec. 347); Webbers’ Ex’rs v. Blunt, 19 Wend. 188 (32 Am. Dec. 445); Placket v. Gresham, 3 Salk. 75; Scott v. Shaw, 13 Johns. 378; Denny v. Lincoln, 5 Mass. 385; Hinman v. Brees, 13 Johns. 529; Goodale v. Holridge, 2 Johns. 193; Packard v. Tisdale, 50 Me. 376.

In most of these cases the illegal act complained of .against the sheriff relates to his act in releasing a body execution, and it is well settled that in such cases the act is illegal and void as against public policy. We think, however, the rule is not strictly confined to cases where the ■sheriff has been directed to take the body of the debtor in ■execution. . In the case of Buffendeau v. Brooks, 28 Cal. 641, a bond taken by the sheriff to indemnify him from loss or damage by reason of his proceeding with the sale of certain goods and chattels was held void. The proofs in that case show, however, that, at the time the bond was delivered to the sheriff, he had notice that the judgment he was about to enforce by a sale of the chattels under the execution had been discharged by process of law, and also that an injunction was out against New, the plaintiff, restraining the sale. The sheriff, upon taking the bond of indemnity, proceeded with the sale notwithstanding the injunction of the court. The bond was held void by reason of the unlawful act of the sheriff in violating the injunction. The case was referred to by this court in Klock v. Pack, 112 Mich. 670 (71 N. W. 461), •and in that case it was held that a bond given to a garnishee pending judgment in the principal suit, to indemnify him against harm and damage resulting from the immediate payment to the plaintiffs therein of a portion of a fund which, according to- his disclosure in the case, he held as trustee for the principal defendant, was not void ■on the ground of public policy. The case was distinguished from the case of Buffendeau v. Brooks, supra.

We think the present case is plainly distinguishable from the cases cited by defendants’ counsel. Here the hond was taken at the request of Counsel for these very defendants. The case is not like one where the sheriff holds an execution by which he is directed to take the body of the debtor, or where he is proceeding in violation of an injunction, or some other order of the court. It. appears here that the sheriff was impressed with the idea, conveyed to him by Mr. Price, the attorney for the sureties, that the execution had been improvidently issued. Had that contention been sustained by this court, it would have appeared at once that the sheriff had no right to-make the levy. There is no doubt but that all the parties were acting in good faith at the time, as no construction had then been given to that statute. We think it must be held, under these circumstances, that the taking of the bond was not against public policy, and was not in contravention of any statute of this State. This was not an illegal act, and the bond was given upon sufficient consideration to entitle the plaintiff under his assignment to-maintain his action thereon.

The judgment below must be affirmed.

Moore, J., concurred with Long, J.