Tousey v. Bishop

22 Iowa 178

• Court: Supreme Court of Iowa
• Decided: April 18, 1867
• Status: Published

Opinion

Dillon, J.

1. Judgment: agreement to restrain. Although the voluminous testimony in this case has been attentively examined by the court, it is not deemed necessary to review it in this opinion. ° r Pon some material questions it is conflicting and irreconcilable. It is proposed simply to state the results which the court has reached.

We may concede the fundamental proposition of law upon which the plaintiff’s ease is grounded, viz.: that, if there was, at and before the rendition of judgment, a valid and binding agreement by Boot, Giger & Bro., to stay the execution, and if this was made without the consent of the sureties, this would in law discharge them. This, we say, will be conceded, although a portion of the court is not willing to be concluded on the proposition that it is not within the power of the principal in the replevin bond to make any contract of compromise that he sees proper or deems for his interest, so that it be done without collusion and in good faith ■ and since any money judgment rendered against the principal goes, under the statute, also against the sureties, one of the conditions or terms of such compromise, may well be a stipulation for time of payment of the judgment to which the plaintiff in replevin consents. (As to effect on surety, of' stay of execution in ordinary cases, see 2 Am. Lead. Cas., 3d ed., 813, 311, and cases cited; and Hershler v. Reynolds, present term.) But upon this question the court regard it as unnecessary to express any opinion.

The plaintiffs’ proposition of law being granted, the remaining question in the case is this, viz.: whether the agreement to stay the execution was valid and binding upon Root, Giger & Bro. Upon the evidence, the court are of opinion that it was not.

The judgment in favor of Root, Giger & Bro. was absolute on its face, giving the right to issue an execution at once, or at any time. The agreement to stay it, was not made part of the judgment; nor was it intended that it should be. On the contrary it was intended that it should not be.

There are not wanting respectable authorities to the effect that, under such circumstances, the judgment and •its legal incidents cannot be affected by an antecedent or contemporaneous independent collateral agreement to stay execution; and that the remedy for the violation of such an agreement is not and cannot be, in equity, to stay or enjoin the judgment, but it is and must be by an action at law on the agreement, for damages. See on this subject Woolworth et al. v. Brinker, 11 Ohio, 593; Fullam v. Valentine, 11 Pick., 156.

2. Puracipau a™emeutto give time. But we do not place our judgment upon this ground ; but upon the ground that the agreement to stay the execution was made and given by Root, Giger & Bro., upon the understanding that the sureties were represented, and that such stay would be satisfactory to them. The court, upon an examination of all the evidence, and particularly the circumstances transpiring at the time the compromise was made, and the after conduct of the parties, are of opinion that this understanding on the part of Root, Giger & Bro. was reasonably justified by what was said and done by the attorneys of Ladue, and without which understanding the agreement would not have been made. Such a case is shown by the evidence (which it would require many pages fully to refer to) as would prevent Ladue from being entitled to use the agreement for a stay, against Root, Giger & Bro., had they issued execution on their judgment.

That is, had execution issued, and had Ladue applied to a court of equity to enjoin it upon the strength of his agreement, and had the same facts then been disclosed as have been disclosed in this case, we are quite confident that no court of equity would or should have enjoined the collection of this judgment.

If this is so, then Root, Giger & Bro. have never at any time been disabled from proceeding to collect their judgment; and had the sureties paid it, as they might, they would have been subrogated to the right, of Root, Giger & Bro., and could at once have enforced it, in spite of the agreement to stay the execution. If we are right in our conclusions upon the evidence, that Ladue could not effectually have used the agreement to stay the execution, then, in law, there was no valid extension of time, and consequently the sureties are not released. For, in point of law, any agreement that would be ineffectual to tie the hands of the creditor, as against the principal debtor, would likewise be ineffectual to operate as a discharge of the surety.

The disability of the creditor to proceed against the sureties must, in order to exonerate the latter, be not apparent only, but actual; not binding in honor simply, but in law. Such is the well settled doctrine, and the books abound in multiplied illustrations of its application. Davey v. Prendergrass, 5 B. & Ald., 187; Tudor v. Goodloe, 1 B. Mon., 322; and see cases collected 2 Am. Lead. Cases (3d ed.), 306, 310.

We have less hesitation in reaching the conclusion that it is our duty to reverse the decree below, because the testimony shows that Ladue was, and all the time has been, insolvent; and that, in fact, the sureties have not been prejudiced by the agreement of which they complain. While, on the other hand, to affirm the decree, would cause Boot, Giger & Bro. to lose their debt against Ladue, which had been fully secured to them by the property attached, and which was taken from them by the action of the plaintiff, in signing the replevin bond.

Let the decree of the District Court stand reversed, and the petition dismissed.

Beversed.