Evans v. Daughtry

• Decision Date: 22 March 1888
• Citation: 4 So. 592,84 Ala. 68
• Parties: EVANS v. DAUGHTRY ET AL.
• Court: Alabama Supreme Court

4 So. 592

84 Ala. 68

EVANS v. DAUGHTRY ET AL.

Supreme Court of Alabama

March 22, 1888

Appeal from probate court, Bullock county; S. T. FRAZER, Judge.

This was a motion in the form of a petition by F. V. Evans for an order to supersede the execution of a decree rendered by the probate court against one W. N. Raney, as guardian of E. R Daughtry, formerly E. R. Raney, on the final settlement of the guardianship of the said Raney. The petition further prayed that the decree be vacated as to Evans, who was one of the securities on the guardian bond of Raney, and as such surety the decree was rendered against him, together with the other sureties and Raney himself. Evans signed the bond conditionally, as appears from the facts stated in the opinion, and, for the reasons which sufficiently appear from the opinion, sought to have the decree as to him vacated. The probate court overruled the motion of Evans, and he thereupon appealed.

W F. Foster, for appellant.

Norman & Son, for appellees.

STONE C.J.

There is no conflict in the testimony in this case. It fully proves that Evans signed the bond conditionally, and left it with Raney, his principal, with the understanding and instruction that he was not to become a surety on the bond unless Pearson and Scott became co-sureties with him. In other words, it was left with him as an escrow. Neither Pearson nor Scott signed the bond, and it results, if there is nothing else in the transaction, that Evans is not bound as a surety on the bond. Bibb v. Reid, 3 Ala. 88; Guild v. Thomas, 54 Ala. 414; Marks

v.

Bank, 79 Ala. 550; Smith

v.

Kirkland, 81 Ala. 345, 1 South. Rep. 276. The court below found as fact that Evans did sign on the condition claimed. It was contended in the probate court, and the court so ruled, that Evans, by permitting Raney to obtain the appointment of guardian on said bond, and to act under it, had estopped himself to deny his liability as surety. Wright

v.

Lang, 66 Ala. 389, is relied on as supporting this view. The principle is certainly sound if the facts justify its application to this case. To make this principle applicable, however, it must be shown that the party sought to be estopped had knowledge that his confidence had been abused, or had notice of some suggestive fact which, if followed up, would have led to such knowledge. Machine Co.

v.

Ashley, 60 Ala. 496; Burns

v.

Campbell, 71 Ala. 271; Herring

v.

Skaggs, 73 Ala. 446. The...