Brown v. Murdock

Tuck, J., delivered the opinion of this court. This record shows that the appellees were sureties on the testamentary bond of Joseph and Louisa Murdock, as executors of Thomas Murdock, and that the bond now in suit was executed to them, as obligees, by direction of the orphans court, for the purpose of counter-securing them against loss as such sureties. The bond is dated the 21st of March 1851, and endorsed, “Approved by the court, March 9th, 1852.” The plaintiffs claim to recover the amount of a judgment rendered against them as sureties in the testamentary bond, at December term 1857, of the Circuit court for Charles county, and which they had been required to pay. The pleas filed by the appellants, who were the sureties in the bond of indemnity, cover three defences, though stated in different forms: 1st, non est factum; 2nd, that no devastavit was committed by the executors after the execution and delivery of the bond, and that every devastavit, if any was committed, occurred before the bond was given; 3rd, that the judgment set forth in the declaration was recovered against the plaintiffs, as defendants therein,” by their défault, and without any defence by them either in person or by attorney.” Issue was joined on the pleas denying the execution and delivery of the bond, and to the others the plaintiffs filed demurrers, which were ruled good. The verdict on the issues of fact being against the defendants, they appealed, and we are to review the decisions below as well on the questions raised by the pleadings, as upon the exceptions taken at the trial before the jury. We are of opinion that the condition of the bond embraces the matter relied upon as a breach, even if we concede that the devastavit had occurred before the execution of the bond-It stipulates, substantially, that the executors shall perform [531] their duties, as such, and from time to time, and at all times thereafter, save, defend, keep harmless and indemnify these appellees, and their property, from all actions, suits, payments, costs, charges and damages, by reason of their surety-ship on the testamentary bond. The pleas, which present this question, admit the recovery and payment of the judgment as alleged in the declaration, and repayment of the money is within the plain meaning of the instrument, unless the appellants’ counsel be correct in their construction, that it can be sued only in cases where the alleged devastavit occurred after its delivery. The Acts of 1798, ch. 101, sub-ch. 14, sec. 11, and 1S29, ch. 216, authorize bonds of this kind, where sureties conceive themselves in danger of suffering from the suretyship. They need not wait until n devastavit shall have been committed and ascertained by process of law; in many instances this might be too late. They may proceed whenever the executor, by his conduct in the administration, shall give them cause to apprehend Joss, without waiting for legal proceedings against him at the instance of creditors. If the assets have been wasted, or are in a course of misapplication, there is a stronger reason for resorting to this protection, in order to defend themselves against tile consequences of such mismanagement on the part of the executor, though their liability to creditors cannot be ascertained until there is a judgment against their principal in the bond. Act of 1720, ch. 24. Dorsey vs. State, 4 G. & J., 471. Indemnity against apprehended loss, by failure of the executor to satisfy such process, we take to be within the intent and provisions of the law, and that for such purpose, the present bond was a proper precaution. * It is not a sufficient answer to say, as urged in argument, that this view of the case makes the bond operative beyond the intent of the parties in entering into the contract, and fraudulently, because retrospectively. Where the law requires counter-security, parties becoming liable on such bonds should ascertain the condition of the administration before they incur the risk. As they express themselves, in the writing, they [532] must be bound, and will not be allowed, after the security has been taken and approved, and others have suffered by the misconduct of their principal, to allege in defence their ignorance in this respect. There is no fraud in the case, and no warrant for any argument on that ground. The pleadings present a mere question of interpretation of the contract, under the law, and, for the reasons assigned, we are of opinion that the demurrers to the 2nd, 3rd, 5th and 6th pleas were properly sustained. We also agree with the court below, as to the ruling on the issue in law, on the 4th plea, that the present plaintiffs had not defended the action against them on the testamentary bond. It is defective in not averring that there was a legal defence, which they might have made to the action. Assuming that there was none such, the present appellants were less damaged than they might have been by a fruitless, unnecessary litigation. Whether, if in proper form, the plea would have been an answer to the action, we need not decide. The first prayer of the defendants we understood their counsel as having abandoned, at the bar; the others relate— as does the first — to the execution and delivery of the bond. The evidence shows that it was signed by the appellants and left in the possession of Joseph Murdock, the principal, and one of the executors, who had been required by the court to “execute a counter-security bond to the plaintiffs, as securities on the testamentary bond of Thomas Murdock.” It was next seen, in December 1857, among the official papers of the register of wills, which were to be acted upon by the orphans court, and was approved on the 9th of March following. We are of opinion that the presence of the obligors, in person or attorney, was not necessary to the valid delivery of the bond. Courts should estimate the conduct of men according to the nature of the transaction, and in such cases as this, with reference to the purposes and object of the instrument. This bond was placed in the hands of a party interested in having it duly accepted, to save the penalties imposed by law,.if he failed to give the counter-security, and the [533] reasonable presumption is, that the parties intended that he should lay it before the court for acceptance. This is the custom in many of the counties, in reference to bonds in the clerks’ and registers’ offices, where sureties do not reside near the county seat. Delivery, as well as approval, “may depend on circumstances, such as the place where the bond is found, the endorsements upon it, and inferences fairly deducible from the facts of the transaction. ’ ’ Burgess vs. Lloyd, 7 Md. Rep., 201. The facts and reasonable deductions in the present case are, in our judgment, sufficient to support the plaintiffs’ averment under the pleas of non est factum. (Decided January 23rd, 1861.) Nor do we think that the delay in approving the bond, relied upon in the third prayer, should operate againsEthe appellees. When the bond was presented to the orphans court does not appear; it may have been held under consideration for reasons satisfactory to the court, and we should not presume any thing against the obligees more than against the obligors, since, during the interval, the former were in no better condition to have hastened the action of the court than were the latter. It was not their obligation, as a statutory bond, until approved, (7 Md. Rep., 201,) but if they allowed it to remain in the office until accepted, they cannot avoid the consequences. Upon all the rulings of the court, we think the judgment should be affirmed. Judgment affirmed.