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neither the wife por the plaintiffs, her heirs, had any right of action or entry when the adverse possession began; so under this decision the limitation law does not apply to them. Then under what law was this case decided? It will not do to say that this law becomes of force when a right of entry accrues, for the words of the law would still remain, that the ancestor must have been seized within ten years before the suit is brought. Whenever the law operates, it does not say you must begin your action within ten years after you have a right of action, but merely says your ancestor must have been seized within ten years before you bring suit. In the case at bar the conclusion reached is no doubt equitable, but has the court en. deavored to ascertain the intent of the legislature? We believe the lay mind and our legislators may be presumed to be such], intended to make an absolute bar in all cases after twenty-four years, and the prior decisions in this State look as though the legal mind was much of the same impression,16 Query, did the legislature design a distinction between right of action and right of entry, considering the first solely relative to the act of disseizin and the latter relative to the dispossessed, and make the existence of either state of affairs for twenty-four years an absolute bar?
S. S. MERRILL.
16. Dyer v. Brannock, 2 Mo. Ap. 443.
SIMI JURIS—CONDITIONAL DELIVERY.
TRUSTEES OF SCHOOLS ETC. V. SCHEIK.*
filed. The sureties on the bond prayed oyer of the bond and demurred. The cause was argued before the Hon. Francis Goodspeed, judge of the Will Circuit Court. The court was of the opinion that the bond was so incomplete as to be a nullity and no action could be maintained thereon, and sustained the demurrer. An appeal was taken to the Appellate Court, which court held, where the declaration upon the official bond alleged that the defendants, as sureties, signed and delivered such bond to the plaintiffs as their bond, it is sufficient on demurrer, although it appeared that the bond was not signed by the principal obligor, and reversed and remanded the same. See 10 Bradwell, 51.
The case was afterward tried before his Honor George W. Stipp, at the Will Circuit Court, without a jury, who found for the plaintiffs and entered judgment. An appeal was again taken to the Appellate Court, which court held, under the facts found by the trial judge, the bond was signed by the sureties upon the express condition that it was not to be delivered until it was signed by the principal obligor in the bond; and no cause of action should be maintained on the bond, and reversed the case. For the opinion, see 16 Bradwell, 49, from which decision an appeal was taken to March term, A. D. 1885, of the Supreme Court. The following opinion of the Supreme Court was filed Oct. 5, 1886, reversing the Appellate Court's last decision.
James Frake and B. W. Ellis for Appellant; Messrs. Hill & Dibell and Messrs. Healy & O'Donnell for appellees.
CRAIG, J., delivered the opinion of the court:
an action of debt brought by the Board of School Trustees against the appellees upon the bond of Phillipp Reitz, a defaulting school treasurer. In the Circuit Court the plaintiffs recovered a judgment, but on appeal the Appellate Court reversed the judgment and decided that no action could be maintained on the bond against the trustees, and under this ruling no remaining order was entered. The bond was never executed by Phillipp Reitz, the principal, although his name was inserted in the condition and obligatory part of the instrument. It was properly executed by appellees as sureties, and was accepted and approved by the Board of School Trustees. Much reliance seems to be placed in the argument upon the finding of facts as incorporated in the judgment of the Appellate Court, it being claimed that the court found that appellees signed the bond upon the condition that it should not be delivered until it had been executed by the principal. We do not so understand the finding; tbe Circuit Court has found the facts and recited in the record what that finding was, and this seems to have been adopted and sanctioned by the Appeliate Court. Upon an examination of the Circuit Court it will be seen that the court found from the evidence that Reitz promised the sureties that he would sign the bond
Supreme Court of Illinois, October 5, 1886. 1. Suit on school treasurer's bond, signed by sureties but not signed by principal obligor. Suit was against the sureties. Among the facts found by the trial judge was that the bond was signed by the sureties upon the agreement, between them and the principal obligor, that he would not deliver the bond until he had signed it, which agreement he violated.
2. Held, that the sureties were liable for the defalcation, and that the agreement did not amount to a conditional delivery of the bond.
This case was brought by the appellants in 1876, in the Circuit Court of Will County, on a township treasurer's bond, against the principal in the bond and his sureties. The case was first tried before Hon. Josiah McRoberts. On the trial it was for the first time discovered that the bond was not signed by the principal in the bond; his name appeared in the obligatory part of the bond only. The court gave judgment against the principal obligor and his sureties. The cause was appealed to the Appellate Court, Second District, which court reversed and remanded the same on account of variance between the bond sued on and the bond introduced in evidence. See 3 Bradwell, 448.
The case was redocketed, suit dismissed against the principal in the bond and amended narr.
*8. C. Chicago Legal News Vol. 19, p. 32 October 9th, 1886.
before it was delivered. This, however, does not others wbich hold that the sureties may be held constitute the execution of a bond upon condition liable, although the principal did not execute the that it should not be delivered unless executed by instrument. State of Ohio v. Bowman, 10 Ohio, the principal. Indeed, the sureties seemed to rely | 445, was an action on a treasurer's bond. The upon the promise of Reitz and not upon a con principal's name was in the body of the bond but ditional delivery, as is apparent from the finding he did not sign the instrument; the sureties deof facts by the Circuit Court and from the decided fended on the ground that the principal had not weight of evidence. It is also said that the liabili signed it, but the court held that they were bound. ty of appellees should be construed strictly. The Loew, Admr. v. Stocker, 68 Pa. 226, was an action general rule is that the undertaking of a surety is against sureties on a bond of indemnity; the to be construed strictly; he is only bound in the principal's name had been signed without authormanner and to the extent set forth in the obliga ity; on the decision of the case it was said: Had tion executed by him: Cooper v. The People, 85 the bond not been executed at all by the princiIll 417. But adhering to this rule to its ultimate pal, though his name was mentioned as one of the limit, are the sureties liable on the obligation obligors in the body of the instrument, it is clear which they executed? The statute required this that the surety could not avail himself of this fact bond to be executed and delivered to the trustees as a defense. Herrick v. Johnson, 11 Metcalf, 34; for the purpose of keeping secure the public Keyes v. Keen, 17 Tenn. 330; Haskins v. Lambert, funds and for the purpose of guarding against a 16 Me. 142; Grim v. School Directors, 51 Pa. St. public loss. In view of this fact, while we regard 219; Williams v. Marshall, 42 Barb. 524; Miller it proper to adhere to the rule of law indicated v. Turnis, 10 Upper Canada, 423, announce a simabove, still, a surety who has incurred an obliga ilar rule. tion of this character should not be allowed to
The Supreme Court of Michigan does not seem escape liability upon a mere technical defect in
inclined to adopt the rule established in either the obligation he may bave executed, which does
class of cases cited above, but seems disposed to not go to the substance oi his undertaking. Keep
adopt a medium ground. ing the principle in view, we will examine the
Johnson v. Township of Kimball, 37 Mich. 590, principal objections urged against the validity of
is a case in its facts quite similar to the one under the bond upon which the action is predicated. It is
consideration. There, as here, the suit was against claimed that where the name of an intended co-obligor appears upon the face of a bond, who has not
the sureties on the official bond of a defaulting
treasurer; the bond was drawn setting out the executed it, the instrument is imperfect and not
name of the principal and sureties, but it was binding. The decisions of the courts of the different
never executed by the principal. In the decision states are not barmonious in regard to the binding effect of a bond upon the rights of sureties where
of the case the court said: Our statute plainly the bond has not been executed by the principal.
contemplates that the treasurer shall himself be a In Bean v. Parker, 17 Mass. 603, where an action
be a party to his own official bond. And while was brought against the sureties on á bail bond
we are not prepared to hold that a bond knowing. which had not been executed by the principal, the
ly and intentionally given without his concurrent court held that no action could be maintained.
liability will not bind the obligors, we are of the It is there said: We think it essential to a bail
opinion that where he purports to be obligor and bond that the party arrested should be a principal;
does not sign the bond, there must be positive evit is recited that he is; and the instrument is in
idence that the sureties intended to be bound complete and void without his signature. In a
without requiring his signature, before they can later case, Russell v. Anable, 109 Mass. 72, where
be held responsible. See, also, Hall v. Parker, 39 the principals on a bond constituted a firm, and
Mich. 287, where the same doctrine is announced. the firm name was signed by one of the partners, We have given the authorities bearing on the the court held that the surety was not bound un question due consideration, and we are not inless it appeared that the partner who signed the clined to adopt the view held by the courts that a firm name had authority from his partner to do bond signed by the sureties without the signature so. In Wood v. Washburn, 2 Pick, 24, an ad of the principal, may not be binding upon those ministrator's bond not executed by the adminis who execute it, as was held in the case cited from trator was held not to be binding on the surety.
Missouri and other like cases. If the sureties saw In Fery v. Burchard, 21 Con. 602, a similar ques proper to bind themselves without the principal tion arose, and the court held that a contract of executing the bond and becoming bound, we think a surety was of such a nature that there they might do so, and their undertaking is one could be no obligation on his part unless that may be enforced in the courts by an approthe principal was also bound. In Brown v. Jet priate action. The fact that the principal obligor more, 70 Mo. 228, a late case, and one, too, quite in this case failed to sign the bond was a mere similar to the one before us, the sureties on a con technicality which ought not to affect the rights stable's bond were held not liable for a default of of any of the parties concerned. In what way are the constable upon the sole ground that the bond the sureties injured by the omission of the prinhad not been executed by the principal. There cipal obligor to sign the bond? If they are comare other cases holding a like view, and there are pelled to pay the trustees any sum of money on
account of the default of the treasurer they can recover the amount back from him whether he signed the bond or not; so far then as they are concerned they are in as good position as if Reitz, the treasurer, had properly executed the bond. If Reitz is insolvent, a judgment in favor of the trustees against him could be of no benefit to the sureties; if, on the other hand, he is solvent, the sureties can collect from him whatever sum they may be required to pay in consequence of executing the bond. If the bond had been signed by the sureties upon condition that it should not be delivered to the trustees until executed by the treasurer, and if the trustees had received notice of such condition, or notice of such facts pointing to such a condition as might put a prudent person on inquiry before the bond was approved, then they could not be regarded as innocent bolders of the instrument, and entitled to maintain an action upon it. But the sureties, as appears, did not sign the bond on such a condition, but executed the instrument and relied merely upon the promise of the treasurer, that he would before delivery of the bond sign it. This was no more than a secret promise made by Reitz, the treasurer, to those who signed as sureties, which could not be binding upon the trustees. They had no notice of the arrangement existing between the treasurer and the sureties, and they ought not to be affected by it.
In Smith v. Peoria County, 59 Ill. 414, where an action was brought upon an official bond against one of the sureties, he set up as a defense that he signed the bond on condition that it should also be executed by one Cox as co-surety, before it should be delivered; that Cox failed to execute the bond ; that, in violation of the agreement, the bond was delivered without his knowledge or consent. On demurrer to pleas, in which this defense was set up, the måtters alleged were held not to constitute a valid defense to the action on the bond; but other pleas in which the same facts were a set up, and also that the plaintiff had notice, were held to constitute a valid defense to the action. Under the ruling in the case cited, if the bond in this case was signed by appellees upon condition that it was not to be delivered until executed by the principal, and the trustees at the time they accepted and approved the bond had notice, no action could be maintained on the bond; but, as said before, no such defense was made out. The judgment of the Appellate Court will be reversed and the circuit court will be affirmed. The cause remanded to the circuit court for further proceedings in conformity to this opinion.
Reversed and remanded.
one of two innocent parties must bear a loss from the act of a third person, it must fall upon the one who enabled that third person to cause it. Sureties, therefore, who entrust their principal with a bond signed by them for delivery to the obligee, make him their agent and are responsible for his acts. In such a case the sureties are liable although their principal disregards their conditions and instructions, unless, indeed, the obligee is guilty either of fraud or rashness in accepting such a bond.1 In a West Virginia case, the sureties having executed the bond delivered it to their principal with instructions to get other sureties before delivering the bond. He disobeyed this instruction, but they were nevertheless held responsible. To the same effect is a Kentucky case, and so also is a Virginia case, and in Indiana the same doctrine has been held in two cases.5 In Missouri there is a like ruling, 6 and in Vermont, and in Maine. In the Supreme Court of the United States the same principle has been recognized.9
It must be noted, however, that running through all these authorities there is a very material qualification of the broad doctrine that under the stated circumstances the surety is liable. " Unless, indeed, the obligee is guilty either of fraud or rashness in accepting such a bond; ” 10 the same language appears in Lyttle v. Cozad 11 and in Nash v. Fugate,12 the court expresses the same limitation more fully. It says: “The instrument being complete in form, (precisely such as wonld have been adopted if the parties signing it were alone to be bound,) being found in the possession of the very person who would have held it if the purpose had been to make an unconditional delivery: under such circumstances an obligee accepting has the right to infer that the transaction is precisely what it purports to be, and that the real power is in fact co-extensive with the apparent power.” And just here we may remark that in the principal case the instrument was not "complete in form," but, upon its face, was incomplete.
In State v. Pepper, 13 the court holds that the obligee is not bound by the condition unless he has notice of it, or of circnmstances which should put him upon inquiry. In State of Maine v. Peck,14 it seems to be stiputated that the bond must be perfect on its face, and that the obligee must have no notice of any condition, or of anything to put him on inquiry. And in each of the other cases cited, there will be found clauses which indicate clearly that the obligee must be, in a legal sense, a strictly innocent party.
There can be no doubt that when the obligee is, in a legal sense, a strictly innocent party; and the instrument is complete in itself, and the obligee has no notice of any condition or agreement contrary to the validity of its delivery, nor any knowledge of facts which should put him on inquiry as to irregularities;
1. Murfree v. Official Bonds $ 166.
3. Smith v. Moberly, 10 B. Monr. 266; See also Bank etc v. Carey 2 Daua. 142; Millett v. Parker 2 Motcf. Ky., 608.
4. Nash v. Fugate, 24 Gratt. 202.
5. Deardorff v. Foreman 24 Ind., 481; State er rel. v. Pepper, 31, 76.
6. State use &c v. Potter, 63 Mo., 212.
NOTE-The rule that the liability of a surety is strictissimi juris is well established, but like other rules of law must be reasonably construed, especially when it comes into collision, real or apparent, with other rules of law equally beneficent. Such a rule is, that when
the surety will be bound, however stringent a condition he may have imposed upon his principal as to the delivery of the instrument. The principal is certainly his agent for the delivery of the bond, not the agent of the obligee to procure it. But we think it equally clear that if the obligee is not innocent in the strictest legal sense, if he has notice of a condition attached to the delivery which has not been observed, or of facts which should put him upon inquiry as to such conditions; or, if the bond is not regular and complete, (which ought surely to put the obligee upon inquiry,) then the obligee is bound by the condition. As already stated, the cases which sustain the liability of the surety who has imposed conditions as to the delivery of the bond, also recognize his immunity if notice of the condition can be bronght home to the obligee, and there are other cases which directly sustain it. In a Virginia case, 15 a bond was drawn in which the names of the principal and four sureties were inserted, one of the named sureties did not execute it, and it appearing to the court that two of those who did sign it had stipulated for the signature of the whole number named in it, they were held to be released, and their release authorized the release of the third surety. And in a New Jersey case, it appeared that one of the parties to a bond at the time of executing, stipulated that it should not be delivered until all the parties named in it had executed it, the court held that as one of the parties named in it had not signed it, it could not be received in evidence.16
The rule of law governing this subject, we are persuaded, is that if a surety executes a bond and delivers it to his principal upon, a condition that another person shall sign it before delivery, and that other person does not sign it, the surety is bound, unless he can show that the obligee had notice of the condition upon which he had signed it, or of such facts and circumstances as should put a reasonably prudent man upon inquiry as to the existence and character of such condition. And we cannot conceive of anything more likely to put a prudent man upon inquiry in such a case than the fact that the instrument is incomplete, that a name is inserted in the body of the bond as an obligor which does not appear at the bottom of the instrument among the signatures of the obligors.
And when a party is put upon inquiry as to the facts of a transaction, he is charged with notice of everything which, by that inquiry, he could reasonably be expected to discover, and if he ascertains, or ought to have ascertained, that the obligor in delivering the bond has committed fraud upon
the surety, by violating his promise by accepting he became a party to that fraud, is no longer, in contemplation of law, innocent; and the fraud, so practiced by the principal and abetted by the obligee, lets in all the equities of the surety against either, and restores to its full force the rule that the liability of a surety is strictissimi juris.
1. ACCOUNT-- Settlements with Cestui que Trust
Probate Account-Evidence.-Where a trustee under a will has made a settlement with A. and B., cestuis que trust, and afterwards rendered a probate account which has been allowed, in a suit against the trustee for an accounting, the settlements are to be upheld as evidence that, in casting interest, there should be a rest at the time of such settlements, and thereafter the interest or income should be computed on the amount found due. A. and B. in such settlement; and this is so al. though, when such settlements were made, they were false in their statements, and the trustee had not in his hands the property which he pretended to have, but had misappropriated it to bis own use; and where at the time of the settlement with A. and B., the trustee rendered an account of the sum due C., another of the cestuis que trust, under the same will, such an account is evidence of what C.'s share then was, and in casting interest a rest is to be made as of the date of such account, and also another rest at the date when the sum due C. was payable McKim Judge &c. v. Hibbard, S. J. Ct. Mass., Sept. 16, 1886; 8 N. East Rep. 152.
2. ASSIGNMENT for the Benefit of Creditors
Preferences-Fraud-Statute of LimitationsLex Fori Governs-Conflict of Laws.-When an insolvent debtor who has made an assignment for the benefit of his .creditors secures a part of the creditors a percentage of their claims, and they then transfer them to a third party, so that the assignor can get a pro rata allowance when the estate is distributed, the claims will not be allowed. The statute of limitations only affects or bars the remedy, and the statutory bar of the state where the remedy is sought to be enforced, and not of the state where the contract is made, governs. Farmers' etc Bank v. Lovell, Ky., Ct. of Appeals Sept. 21, 1886: 1 S. W. Rep. 426.
ED. CENT. L. J.
15. Ward v. Churn, 18, Gratt. 801.
16. State Bank v. Evans, 15 N. J. Law. 155; See also Pawling v. United States, 4 Cranch (U. S.) 218; Bibb v. Ree 3 Ala , 38; King v. Smith 2 Leigh 157; People v. Bosiwick 32 N. Y., 445.
3. ATTACHMENT-Claimant-Equitable Title of
Claimant- Appeal-Attachment--Bona Fides of Sale of Property by Debtor- Weight of Evidence. -An equitable title to land attached, acquired prior to the levy of the attachment, is valid as against the attachment. Where, in attachment proceedings, there is an issue as to the bona fides of a sale of real estate by the debtor, and there is some positive proof that the transaction was genuine, and the trial court has so found, the appellate court will not order a new trial, unless the verdict is clearly against the weight of the evidence.
Brooks etc Co. v. Bush, Ky., Ct. App. Sept. 18, 1886; 1 $. W. Rep. 424.
4. BONDS-Probate Bond-Discharge of Bond
Liability of Sureties.-W., as trustees under the will of E., gave bond "A." with sureties. W., who was also trustee under the will of D., had given bond “B.” on which J. was security. J. under a misapprehension that he was surety on bond "A." petitioned to be discharged from liability thereon, and, as a result of his petiton, the probate court decree his discharge as surety thereon. G. and H., supporting that J. was surety on bond "A," and wished to be discharged from further liability thereon, and supposing that there was no bond in force, signed a new bond, “C,” as sureties; the bond being for the same liability as bond "A." The slightest examination would have shown that J. was under no liability on bond "A." Held, that both bonds “A” and “C” were valid and in force; that the sureties on each bond should be held responsible in proportion to the amount of the bonds, and the liability they had severally incurred; and that it could not constitute any defense to the sureties on bond “C” that, by reason of the validity of bond "A," their liability would be less than they intended. Brooks o. Whitmore, 8. J. Ct. Mass., Sept., 8, 1886; 8 N. East Rep. 117.
7. CONTRACTS-Moral Consideration-- Subsequent
Promise-- Married Woman.--A contract made by woman while married, which is void on account of her coverture, furnishes no consideration for her subsequent promise during widowhood. Kent v.
Rand, S. C., N. H., July 30, 1886; 5 Atl. Rep. 760. 8. CORPORATION-Legal Existence, how Questioned
-Quo Warranto by Prosecuting Attorney.When parties in good faith attempt to organize as a corporation under a law authorizing such incorporation, and hold property and perform acts as a corporation, its legal existence can only be questioned at the suit of the state, instituted by the proper prosecuting attorney, and not by a private individual. North v. State ex rel. S. C. Ind., Sept., 14, 1886; 8 N. East. Rep., 159.
5. CONFUSION-of Goods--Saie-Notice.-Floating
logs distinctly marked are not subject to confusion or commixture of goods in the sense implied by those terms in law; and for their appropriation and turning them into money knowingly and without right, a party is liable to the owner; but it is not a case where defendant should be chargeable on account of the means of knowledge being particularly within his reach, and not within reach of the other party. On a promise by defendant to settle and pay” for the logs appropriated, the question as to whether the parties referred to all the logs in controversy, or the number proved to have been purchased by the plaintiff, is to be found by the referee and not to be inferred by the court. Knowledge of a sale of logs to plaintiff would not necessarily imply knowledge of a transfer, by the seller, of his claim against the defendant for appropriation of other logs. Goff v. Brainerd S. C. Vt., Aug. 9, 1886; 2 N. Eng. Rep. 612.
9. CRIMINAL LAW.-Homicide-Trial-Circumstan
tial Evidence- Conviction- Sufficiency of Evidence-Excluding Every Other HypothesisCumulative Evidence – Indictment Several Counts-Verdict.- Where it is sought to establish homicide by circumstantial evidence, the circumstances, when taken together, should be of a conclusive nature and tendency; leading, on the whole, to a satisfactory conclusion, and producing in effect a reasonable and moral certainty that the accused, and no one else, committed the offence charged. It is not sufficient that they create a probability, though a strong one. If, therefore, assuming all the facts to be true which the evidence tends to establish, they may yet be accounted for upon any hypothesis which does not include the guilt of the accused, the proof fails. It is essential that the circumstances, taken as a whole, and giving their reasonable and just weight, and no more, should to a moral certainty exclude every other hypothesis. Com. v. Webster, 5 Cush. 319. Evidence of distinct and independent facts of a different character, though it may tend to establish the same ground of defence, is not cumulative within the rule. Waller v. Graves, 20 Conn. 305; Baker v. French, 18 Vt. 460. Where distinct offences are charged in separate courts of an indictment, the jury must either return a general verdict of not guilty, or respond to each charge in their finding. Wilson v. State, 20 Ohio, 26; Williams v. State, 6 Neb. 334. Casey v. State, s. C. Neb. Sept. 22, 1886; 29 N. W. Rep. 264.
6. CONTRACT — Statute of Frauds — Evidence
Waiver.-S. and R. were partners, and as such owned a starch factory and had unsettled dealings. In view of settlement, S. offered to sell out to R. for $250, if accepted before a certain time limited, and R. was willing to accept it he could raise the money. Within that time S. deeded to defendant', who, with knowledge of the facts, took a deed on a verbal condition that he would fulfill S.'s offer to R.;R. tendered fulfillment on his part, but the defendant refused. A bill having been brought to compel specific performance, the defendant did not plead the Statute of Frauds, but denied the contract and objected to the admission of oral evidence to prove it. The master received the evidence, but the defendant failed to file exceptions to the report. Held: (a) That all objections to the admission of testimony were waived. (6) That the contract was not void, that it was proved was enforceable, and that the orators were entitled to a decree. (c) That S. was a proper co-orator. Shofield v. Stoddard, s. C. Vt. Aug. 2, 1886, 2 N. Eng. Rep., 611.
10. DEEDS—Boundaries-Construction--Number of Acres Bounded— Number of Acres Stated in Deed -Covenant of Warranty-Statute of Limitations --Breach-Satisfaction Assignment-Mortgage -Eviction-Outstanding Title-Deed-Proof of Oronership.-The deed in questinn, after describing the other boundaties, was "west by Woodford line; supposed to contain 140 acres, more or less." This was followed by further description as being the same lands which were described in two mort. gages therein specified. Then followed this clause: "Intending to convey the same lands, and no other, which passed to me by virtue of the foreclosure of said mortgages." Held, that the latter clause should not be treated as anything more than a reference to the mortgages and decree for further and more particular description. The fact that the land contained within the described boundaries was more than the amount stated in the deed—140 acres, more or less-caunot relieve the vendor from his covenant of warranty. When the boun. daries describe the lands with certainty, they control the quantity, although stated incorrectly in