Menken v. Frank

Campbell, J., delivered the opinion of the court. The bond sued on in this action is not void because the condition is broader than the statute required, but no recovery can be had on it for an alleged breach of such part of the condition as is not provided for by the statute. Code 1871, § 1045. The breaches of the condition of the bond assigned in the declaration are founded on that part of the condition not required or authorized bylaw. We have examined the authorities cited by counsel, and deduce as the true rule on this subject that a bond given in a legal proceeding, which is conditioned for more than the law provides, is good to the extent that the condition is according to law, and is not vitiated by the excess, but that no recovery thereon can be had beyond what could have been recovered if the bond conformed to law. The plaintiffs are seeking to recover their debt due from A. L. Hill on the bond given by the defendants to enjoin the sale of property, because in drawing the bond it was conditioned to pay the debt, when the law required a bond conditioned, not for payment of the debt, but only for damages and costs. To the extent that the bond was conditioned to pay the debt secured by the deed of trust, the execution of which was enjoined, it was beyond the requirement of tbe law, and it would be improper to hold that, because of the mistake in the bond, a recovery on it could be had for what, if the bond had been according to law, could not be recovered. The plaintiffs, being unable to recover on the bond at law, may resort to a court of chancery, and there recover to the same extent that they would have been entitled to recover on the bond at law, if it had been conditioned as prescribed by the statute. Judgment affirmed.