Fletcher v. Austin , 11 Vt. 447 ( 1839 )

The opinion of the court was delivered by

Williams, Ch. J.

This action is defended by three of the defendants only, and the question is, whether the bond has ever been so delivered as to be obligatory on them. On the case as presented, the question as to a second delivery does not arise. There was not, as to all the signers, an inchoate or imperfect delivery in the first place, when the bond passed from the obligors to the obligee, to be absolute on the happening of a certain event. If the bond was delivered so as to be effectual against all,there was but one delivery. A deed takes effect only from the delivery, and o.ur attention is drawn to the inquiry whether this bond was delivered. In the first place, as to those who first signed, viz. Austin and May, it is evident that it never was delivered with their consent. They might require such terms and conditions to be complied' with as they thought proper before the deed should take effect as their deed. Where a bond contains, in the obligatory part, the names of several persons as sureties, if a part sign with an understanding and on the condition that it is not to be delivered to the obligee until signed by the others, it is not effectual as to those who do sign, until the condition is complied with. Whether it is necessary, to make this defence available, that the obligee should know of this condition, it is not necessary to decide. If this bond contains the names of other obligors, and is delivered without the signature of all, the obligee must inquire whether those who have signed consent to its being delivered without the signatures of the others. The case of Pawling etal. v. the United States, 4 Cranch’s R. 219. United States v. Bafflers, 11 Peters’ R. 86. Johnson v. Baker, 4 Barn. & Ald. 440, are authorities that this defence will avail those who thus sign a bond if the other signatures are not procured.

The bond was given over to the plaintiff in this situation, with the signatures of only two of the obligors,' and so remained during the year that Parkhurst, the principal, was deputy sheriff, and when all the acts and neglects of Parkhurst were done or suffered, which would occasion a liability on the bond. Austin and May were not then liable therefor, as their contemplated obligation had not taken effect, and if they knew of the default of Parkhurst they must also have known that they were not liable therefor, unless the • other persons who were to be sureties with them were also liable.

If after the default of Parkhurst this bond had been executed and delivered by all who now appear as signers, it is not doubted but that all would be liable. A bond of indemnity may as well be taken to secure for defaults previous to the delivery as for those which may be subsequent. But it should appear that the obligors so intended at the time of the delivery, and to bring this principle to aid the plaintiff’s case, it should be shown that the first signers assented to a delivery and perfecting of the bond after the defaults had happened. This has not been shown in the case before us.— The signatures, which were obtained after the year and after the bond had been sued, cannot give effect to the bond not only against themselves but against those who were not liable for the acts of Parkhurst as deputy sheriff.

It was argued at the bar, and truly, that'J thepirst signers contemplated a delay in obtaining the signatures of the others. They never contemplated, however, or assented that the bond should go out of the possession of Parkhurst before the others had signed, nor could they have contemplated that a liability should be created against them at any subsequent period by the act of others against their will and without their consent. Possibly, if the others hadsigned within a reasonable time, although the bond had been handed over to the plaintiff by Parkhurst, they might have been liable. But it would not be a reasonable time to do this after the year had expired and after Parkhurst had ceased to be a deputy sheriff, so that the bond, when it was delivered,^should be delivered as a forfeited bond. The conclusion is,'that as to some of the defendants, they never agreed to become sureties for the acts of the principal unless others should become jointly sureties with them. They never consented to become liable for the past defaults of Parkhurst, and therefore the bond declared on was not the joint bond of the defendants.

The judgment of the county court is, therefore, affirmed.