Person v. Thornton

• Decision Date: 20 February 1889
• Citation: 5 So. 470,86 Ala. 308
• Parties: PERSON ET AL. v. THORNTON, REGISTER.
• Court: Alabama Supreme Court

5 So. 470

86 Ala. 308

PERSON ET AL. v. THORNTON, REGISTER.

Supreme Court of Alabama

February 20, 1889

Appeal from circuit court, Colbert county; H. C. SPEAKE, Judge.

Action by L. B. Thornton, register, against A. S. Person and others on an injunction bond. Defendants appeal.

Brickell, Semple & Gunter, for appellants.

J B. Moore, for appellee.

CLOPTON J.

The bond on which the action is founded is conditioned as follows: "Whereas, the said Alfred S. Person has filed his bill of complaint in the said chancery court, and has obtained thereon an order for the issuance of an injunction from the Hon. H. C. SPEAKE, circuit judge, to restrain or enjoin Sarah J. Harland and James T. Harland, their agents and attorneys, from the further prosecution of the action of ejectment against your orator, said Alfred S. Person, for the recovery of an undivided one-half interest in the lots of parcels of land devised to him and Sarah J. Harland by the will of William H. Person, deceased: Now, if the said Alfred S. Person, and W. H. Johnson, and J. C. Goodloe, or either of them, shall pay all damages which any person may sustain by suing out such injunction, if the same is dissolved, then this obligation to be void; otherwise to remain in full force." The original complaint was amended during the progress of the cause. The amendment substantially avers that at the time the bill was filed, the fiat for the injunction obtained, the bond executed, and the injunction issued, there was pending in the circuit court of Colbert county an action at the suit of Sarah J. Harland against Samuel Rhodes Stephen Parker, and Broden Greenhill, to recover the tract of land mentioned in the bond; that Person, having dispossessed her of her interest in the land, rented it to Rhodes, Parker, and Greenhill, against whom the action was brought, being in the actual possession; that Person employed counsel, and defended the suit, and claimed in open court that he was the landlord of the defendants in the suit, the real party defendant, and obtained one or more continuances on account of the sickness of himself or family; that there was no other pending suit in favor of James T. Harland or Sarah J. Harland, or both of them, to recover any lands of any other person; and that the bill in chancery, on which the order for the injunction was made, was filed by Person, and the bond sued on was executed to procure an injunction restraining them from the further prosecution of the suit above mentioned. The amendment further avers that the injunction issued restraining them from the prosecution of the suit for the recovery of the land described, and that they were thereby restrained from its further prosecution. The dissolution of the injunction, and the special damages sustained by its issue, are also averred.

The first assignment of error relates to the ruling of the court sustaining a demurrer to the first plea to the amended complaint. After craving oyer of the bond, and setting out a copy, the plea avers that there is not, and never was, such suit as that recited in the bond, and that plaintiffs have sustained no damage by reason of the injunction. It is a well-settled rule of general application that the admission of a fact in a bond, by recital or otherwise, estops the party executing the bond from asserting its non-existence. The obligors in a forthcoming or replevy bond are estopped from denying the defendant's title to the property levied on, or from asserting that the levy is fictitious. Also the sureties in an administration bond will not be allowed to deny the regularity of the appointment of their principal; and the obligors in a bond given to supersede a judgment which has operated to suspend proceedings are estopped from asserting that it did not operate as a supersedeas. Mead v. Figh, 4 Ala. 279; Adler v. Potter, 57 Ala. 571; Savage v. Russell, 84 Ala. 103, 4 South. Rep. 235; Plowman v. Henderson, 59 Ala. 559; Kirkland v. Trott, 75 Ala. 324. In Willoughby v. Brook, 2 Cro. Eliz. 756, (decided as early as 1704), it was held, in an action of debt on an obligation, which recited that certain suits had been commenced in the court of king's bench, that a plea averring there were no such suits was an ill plea, on the ground that the obligation estopped the defendant from saying that there was not any action there depending. These cases illustrate the general application of the rule. It has also been applied to injunction bonds. In Adams v. Olive, 57 Ala. 249, it was held that in a suit on an injunction bond the obligors-the principal having obtained the benefit of the delay-were not discharged because the judge who made the fiat had no authority to make such order, and that they would not be allowed to take advantage of such want of authority. The bond sued on recites the pendency of an action against the principal obligor to recover particular lands, which action it is sought to enjoin. Such recital effectually estops the defendants from asserting there was no such suit pending. Le Strange v. Roche, 58 Md. 26; 2 Herm. Estop. § 633.

The next assignment relates to the overruling of a demurrer to the replication filed by plaintiff to the other special pleas of defendants. The pleas aver that no injunction was sued out or issued to restrain plaintiffs, or either of them, from the prosecution of an action against Rhodes, Parker, and Greenhill, or any other person except the principal...