Lipscomb, J.
The main question, and perhaps the only one, presented for our consideration, is the validity of the bond of indemnity given by the defendant. The defendant, Elies, had obtained a writ of execution from the Probate Court, directed to the Sheriff of the county of Harris, to seize the personal effects of one Knight, to satisfy the amount due from Knight, on the foreclosure of a mortgage lien upon the property to be seized. This execution was placed in the hands of Fitzgerald, at that time Sheriff of the county of Harris, to be executed. The latter not being satisfied in his own mind, that the execution was legal, nor that the property levied on was the property of Knight, on advice, required and obtained the bond of Elies, with Nichols and Euthven as securities, to indemnify him against damages that might be recovered against him by Knight, on account of this transaction. Suit was instituted by Knight, for an alleged trespass by Fitzgerald in making the seizure of his goods, and prosecuted to a verdict and judgment for $2,600; and it is in proof in this case, that eight hundred and fifty dollars of the judgment had been paid, by the agent of Fitzgerald, after a levy of execution. That Elies had notice of the pendency of the suit, and had counsel attending to it for him, there is not the slightest ground to doubt. The consequences of such notice may perhaps be considered in another place; it is dismissed for the present.— [424]*424There was a verdict and judgment for the plaintiff, from which lilies appealed.
The appellant has challenged the validity of the bond: First, That it is void, because that the consideration upon which it was founded, was to do an illegal act, because if the execution was a nullity, to execute it would be a trespass; and Secondly, If the execution was valid, he was bound to execute it, and a bond to indemnify him for doing what the law required him to do, is void. As general propositions these may be true; but if they are to be taken without any qualifying restrictions, Sheriffs would be placed in a perilous position, worse than stearing between Scylla and Charybdis, because, by refusing to enter the strait, they would be drawn within the vortex of another whirlpool, the action of the plaintiff in the execution, for not entering the pass. The plaintiff would have his action against the Sheriff for failing to execute the process; and it is obvious that he might be ruined by such litigation, if, under such circumstances, no indemnity bond would be valid, whether the execution was valid or not. One exception, or qualification, is admitted by the counsel; that is, if the illegal act has been committed, and not to be done, at the time the bond of indemnity is given, that it is valid against the party proving the unlawful act to be done. This has been often decided to be the law. (Story on Contracts, 541, 575 and note.) The appellant insists, however, that the bond in this case was not given for the past illegal act, but for an act subsequently to be done. In this we believe he is clearly mistaken; the bond, on its face, affords satisfactory evidence that it was taken and executed subsequent to the supposed trespass, arising from the seizure of the property under the process. It contains, among other recitals, the following: “ And whereas by virtue of the writ of execution or order of “sale aforesaid, certain drugs, medicine, furniture and fix- “ tures, have been levied upon.” It is true, that the recitals in a deed are not always evidence, and it is peculiarly so, when another deed is recited; such recital is not evidence of the [425]*425deed so recited, nor of notice to a purchaser or creditor, of the existence of such deed; but recitals, in general, are not to be disregarded, as wholly useless and furnishing evidence of no fact whatever. The office of a recital is more frequently employed to explain the true consideration on which the deed is made; and in this way it could „be made evidence against the maker of the deed. And on this occasion, it has well performed its office, in showing that it was executed after the levy was made. The fact that it was so executed, has not been controverted by any direct proof; and it is strongly corroborated by other evidence.
So far as the validity of the bond is concerned, we might stop here; but other questions have arisen, upon the record, that renders it proper that we should further discuss the rule of law, that a contract of indemnity, to do an unlawful act, is illegal and void. We have before admitted the proposition to be law, and referred to the extreme hardship that might arise from its enforcement, without any qualification. It would seem to be so very hard, and unreasonable, to hold a Sheriff who is disposed to act fairly, and honestly to discharge his duty, responsible for a mistake, and not permit him to secure himself against liability for an act honestly done, by a contract of indemnity, with the person at whose instance he has incurred such liability, that it would be assented to with hesitation and great reluctance. In this case an execution, issued from the Probate Court, having on its face, all that the law required as to form, was put into the hands of the Sheriff, for execution. Eminent counsel assure him that there is no doubt of its validity, and others, enjoying equal distinction, advising him that the Probate Court had no authority to issue the process, and warning him that he had better ask an indemnity. Under such circumstances, that he should have (in the language of the recital in the deed) “in his own mind doubts,” (and these last words put in by the counsel for the plaintiff in the execution, by way, it would seem, of protestation against any one else having such doubts,) is not at all remark[426]*426aMe. The question of the validity of the execution was involved in doubt; it depended upon the jurisdiction of the Probate Court; and learned lawyers entertained and expressed different opinions, some contending that the jurisdiction had not been taken from the Court, and others that the law conferring the jurisdiction had been, by another Act of the Legislature, either expressly or by implication repealed ; and it was therefore exceedingly doubtful, whether the jurisdiction remained in the Probate Court or was vested exclusively in the District Court. With such grounds of reasonable doubt in the mind of the Sheriff, would it be reasonable, would it be reconcilable with the common sense of justice between man and man, to say that an indemnity, taken by him, from the person who required him, in the midst of so much uncertainty, to act, as a security against any liability, he might incur, by so acting, is unlawful ? Such a conclusion would not only do great violence to our own judgment, but would be so outrageously unjust as to shock the moral sense of mankind in general.
The rule of law, we have been examining is not, however, to be regarded so inexorable as to admit of no modification ; but that it is only a general rule, and like all general rules-, implies that there may be exceptions or modifications to it; and that on sound principles of law, more equitable rules, better defining the liabilities of Sheriffs, without repudiating any known rule of law, can be laid down. The whole doctrine on the subject of illegal contracts, is based upon the hypothesis that the illegality and consequently the wrong, is known to-be wrong, at the time the party takes the indemnity for doing the act.
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Lipscomb, J.
The main question, and perhaps the only one, presented for our consideration, is the validity of the bond of indemnity given by the defendant. The defendant, Elies, had obtained a writ of execution from the Probate Court, directed to the Sheriff of the county of Harris, to seize the personal effects of one Knight, to satisfy the amount due from Knight, on the foreclosure of a mortgage lien upon the property to be seized. This execution was placed in the hands of Fitzgerald, at that time Sheriff of the county of Harris, to be executed. The latter not being satisfied in his own mind, that the execution was legal, nor that the property levied on was the property of Knight, on advice, required and obtained the bond of Elies, with Nichols and Euthven as securities, to indemnify him against damages that might be recovered against him by Knight, on account of this transaction. Suit was instituted by Knight, for an alleged trespass by Fitzgerald in making the seizure of his goods, and prosecuted to a verdict and judgment for $2,600; and it is in proof in this case, that eight hundred and fifty dollars of the judgment had been paid, by the agent of Fitzgerald, after a levy of execution. That Elies had notice of the pendency of the suit, and had counsel attending to it for him, there is not the slightest ground to doubt. The consequences of such notice may perhaps be considered in another place; it is dismissed for the present.— [424]*424There was a verdict and judgment for the plaintiff, from which lilies appealed.
The appellant has challenged the validity of the bond: First, That it is void, because that the consideration upon which it was founded, was to do an illegal act, because if the execution was a nullity, to execute it would be a trespass; and Secondly, If the execution was valid, he was bound to execute it, and a bond to indemnify him for doing what the law required him to do, is void. As general propositions these may be true; but if they are to be taken without any qualifying restrictions, Sheriffs would be placed in a perilous position, worse than stearing between Scylla and Charybdis, because, by refusing to enter the strait, they would be drawn within the vortex of another whirlpool, the action of the plaintiff in the execution, for not entering the pass. The plaintiff would have his action against the Sheriff for failing to execute the process; and it is obvious that he might be ruined by such litigation, if, under such circumstances, no indemnity bond would be valid, whether the execution was valid or not. One exception, or qualification, is admitted by the counsel; that is, if the illegal act has been committed, and not to be done, at the time the bond of indemnity is given, that it is valid against the party proving the unlawful act to be done. This has been often decided to be the law. (Story on Contracts, 541, 575 and note.) The appellant insists, however, that the bond in this case was not given for the past illegal act, but for an act subsequently to be done. In this we believe he is clearly mistaken; the bond, on its face, affords satisfactory evidence that it was taken and executed subsequent to the supposed trespass, arising from the seizure of the property under the process. It contains, among other recitals, the following: “ And whereas by virtue of the writ of execution or order of “sale aforesaid, certain drugs, medicine, furniture and fix- “ tures, have been levied upon.” It is true, that the recitals in a deed are not always evidence, and it is peculiarly so, when another deed is recited; such recital is not evidence of the [425]*425deed so recited, nor of notice to a purchaser or creditor, of the existence of such deed; but recitals, in general, are not to be disregarded, as wholly useless and furnishing evidence of no fact whatever. The office of a recital is more frequently employed to explain the true consideration on which the deed is made; and in this way it could „be made evidence against the maker of the deed. And on this occasion, it has well performed its office, in showing that it was executed after the levy was made. The fact that it was so executed, has not been controverted by any direct proof; and it is strongly corroborated by other evidence.
So far as the validity of the bond is concerned, we might stop here; but other questions have arisen, upon the record, that renders it proper that we should further discuss the rule of law, that a contract of indemnity, to do an unlawful act, is illegal and void. We have before admitted the proposition to be law, and referred to the extreme hardship that might arise from its enforcement, without any qualification. It would seem to be so very hard, and unreasonable, to hold a Sheriff who is disposed to act fairly, and honestly to discharge his duty, responsible for a mistake, and not permit him to secure himself against liability for an act honestly done, by a contract of indemnity, with the person at whose instance he has incurred such liability, that it would be assented to with hesitation and great reluctance. In this case an execution, issued from the Probate Court, having on its face, all that the law required as to form, was put into the hands of the Sheriff, for execution. Eminent counsel assure him that there is no doubt of its validity, and others, enjoying equal distinction, advising him that the Probate Court had no authority to issue the process, and warning him that he had better ask an indemnity. Under such circumstances, that he should have (in the language of the recital in the deed) “in his own mind doubts,” (and these last words put in by the counsel for the plaintiff in the execution, by way, it would seem, of protestation against any one else having such doubts,) is not at all remark[426]*426aMe. The question of the validity of the execution was involved in doubt; it depended upon the jurisdiction of the Probate Court; and learned lawyers entertained and expressed different opinions, some contending that the jurisdiction had not been taken from the Court, and others that the law conferring the jurisdiction had been, by another Act of the Legislature, either expressly or by implication repealed ; and it was therefore exceedingly doubtful, whether the jurisdiction remained in the Probate Court or was vested exclusively in the District Court. With such grounds of reasonable doubt in the mind of the Sheriff, would it be reasonable, would it be reconcilable with the common sense of justice between man and man, to say that an indemnity, taken by him, from the person who required him, in the midst of so much uncertainty, to act, as a security against any liability, he might incur, by so acting, is unlawful ? Such a conclusion would not only do great violence to our own judgment, but would be so outrageously unjust as to shock the moral sense of mankind in general.
The rule of law, we have been examining is not, however, to be regarded so inexorable as to admit of no modification ; but that it is only a general rule, and like all general rules-, implies that there may be exceptions or modifications to it; and that on sound principles of law, more equitable rules, better defining the liabilities of Sheriffs, without repudiating any known rule of law, can be laid down. The whole doctrine on the subject of illegal contracts, is based upon the hypothesis that the illegality and consequently the wrong, is known to-be wrong, at the time the party takes the indemnity for doing the act. If the indemnity is to the doing an act, known before it is done, to be contrary to law, the contract so tainted would be void; and the doer of the act is left to meet all the consequences of such wrongful act, as an appropriate punishment for the wilfull commission of the wrong. If the face of the process, when put into the hands of the Sheriff, shows clearly that it is void, he is bound to notice such obvious and palpable defects; and if he executes it, it is at his own peril [427]*427he does so. If the process had been issued from a person or persons assuming to be a Court of record, when no such Court was known to the land, he would be bound to know that there was no such Court, and that process purporting to have been issued by it, was void. No indemnity, in such case, would be valid, should he suffer damages by obeying such process. And if he, with a knowledge that the mandate to him to do the act, was unlawful, should, notwithstanding such knowledge, take an indemnity bond, and then execute it, the contract for indemnity would be a void contract, and leave him without any security for whatever damages he may have, to respond to for such act. But we apprehend that the position of the Sheriff would be entirely different, where a process on its face shows no conclusive or clear marks of invalidity, emanating from a Court of record, of extensive jurisdiction. If, in such case, the Sheriff, not affected with the knowledge of its want of validity, contracts with the plaintiff in the execution, for an indemnity, we know no ground of public policy that would render the contract void. It is the policy of the law, to exact from the Sheriff an honest'and a faithful discharge of his duty, but to give no aid to those who would wish to entrap him, and make him perform an act unlawful in itself, but its illegality unknown to the Sheriff at the time. The plaintiff, in the execution, will not be permitted to hold out the indemnity bond, as a lure to mislead the Sheriff, and say to himself, I will give the bond and thereby induce the Sheriff to execute the process, and if he should be compelled to pay damages, I am in no danger, because it will be easy to show that the process was either good or bad, and either would invalidate my bond.
The rule of law, that a contract to indemnify for doing an illegal act, is void, must be subject to the qualification that the act is known to be illegal at the time of entering into the contract.
The principles we have discussed, and our conclusions, are believed to be supported by legitimate deductions from a(j_ [428]*428judged cases. The late Chief Justice Spencer, in the case of Coventry v. Barton, says, “ I have no hesitation in saying, “ that it is a true and just distinction between promises of in- “ demnity which are, and those which are not void: that if the “ act, directed or agreed to be done, is known, at the time, to “ be a trespass, an express promise to indemnify would be ille- “ gal and void; but if it was not known, at the time, to be a “ trespass, the promise to indemnify is a good and valid “ promise(17 Johns. R. 144;) and he cites Cowper, 343. The Judge, in further commenting upon the case, lays stress upon the fact of its being somewhat uncertain, whether the order that was given to do the act, was legal or not, and concludes by saying: “ I think the conclusion inevitable, that “ the plaintiff did not know, at the time, the act he was doing, “ was a trespass; and then the promise of indemnity is valid.” In the case of Stone v. Hooker, Woodworth, Judge, acknowledges the distinction between such contracts of indemnity as are void, and those that are valid; and, in support of the principle, that to invalidate the promise of indemnity, the party doing the act must know, at the time of his contract, that the act to be done was a trespass, he cites the case of Coventry v. Barton, 17 Johns. R., as conclusive, (9 Cow. R. 154,) and adopts the very language of the Chief Justice Spencer in that case, as before cited. These two cases we consider as conclusive, and result in this, that to render a contract for indemnity void, the party to do the unlawful act, must know the act to be unlawful when he receives the agreement to indemnify him for the act.
In the Court below, the Judge charged the jury “ that it “ made no difference whether the bond sued on was given to “ plaintiff, before or after the levy of the process; in either “ event it was obligatory.” This charge presents no erroneous proposition in law, when applied to the case before the Court. It certainly made no difference, if the Sheriff" did not know that the process was void, when he took the bond; whether it was taken before or after the levy, it was valid. [429]*429There was no effort to prove, that the Sheriff knew that the process was illegal; it was treated, in the defence, as altogether immaterial; and, in the absence of that knowledge, the bond was valid, whether executed before or after the levy. It was a law question as presented; for the Court and not the jury; and the Court did not err in its ruling.
The Court further charged the jury, “ that whether the pro~ “ cess, under which the plaintiff acted, and which was made “ the basis of the recovery by J. D. Knight against plaintiff, “ was valid or not, so far as the purposes of this suit are con- “ cerned, if there has been a recovery of damages against “ plaintiff in consequence of executing said process, the plain- “ tiff has good right to sue upon the bond of indemnity.” The doctrine is believed to be settled, that where there has been a suit against the person for doing the act, and a judgment for damages recovered against him, when suit is afterwards brought on the contract of indemnity, for the reimbursement of the damages, the legality of the act which was the basis of the action for damages, cannot be again inquired into, especially where the indemnifier had notice of the suit for damages, which, if recovered, he was bound to make good.
In Duffield v. Scott, 3 Term R. 374, Mr. Justice Buller says, “ If a demand be made, which the party indemnifying is bound “ to pay, and notice be given to him, and he refuse to defend “ the action, in consequence of which the person indemnified “ is obliged to pay the demand, that is equivalent to a judg“ment, and estops the other party from saying that the de- “ fendant in the first action was not bound to pay the money.”
It is believed, however, if there had been no notice of the pendency of the first action, it would have devolved upon the plaintiff to show that the damages were fair in amount, and could not have been successfully resisted. (See Stone v. Hooker, 9 Cow. R. 154; Andrus v. Bealls, Id. 693.)
We have before said, that there could be no doubt that the defendant, lilies, had notice of the suit of Knight v. Fitzgerald : the notice is positively proven; and there is record evi[430]*430dence, that his counsel did defend the suit; and he is therefore estopped, in the language of Mr. Justice Buller, from saying that Fitzgerald was not bound to pay the money.
There is nothing in the objection that Fitzgerald did not take the case up to the Supreme Court for revision; it is enough if he did not prevent lilies from taking it up; and it is shown that no impediment was offered by the defendant in that action : and further, according to our practice, lilies could have come into the action as a party defendant, and controlled the case himself, he being the party most interested under his bond of indemnity. The judgment is affirmed.
Judgment affirmed.