Ward v. Hood

• Citation: 27 So. 245,124 Ala. 570
• Parties: WARD v. HOOD.
• Decision Date: 10 January 1900
• Court: Supreme Court of Alabama

27 So. 245

124 Ala. 570

WARD v. HOOD.

Supreme Court of Alabama

January 10, 1900

Appeal from circuit court, Cherokee county; J. A. Bilbro, Judge.

Action by S. M. Hood against Charles P. Ward. Judgment for plaintiff. Defendant appeals. Reversed.

This suit was instituted on November 27, 1894, by the appellee, S M. Hood, against the appellant, Charles P. Ward, and Simpson Glover & Hight, a partnership composed of W. P. Simpson, J A. Glover, and C. A. Hight, and sought to recover damages for the breach of a replevin bond executed by Simpson, Glover &amp Hight as principals, and Charles P. Ward as surety. The complaint also contained a count seeking to recover for money had and received. On motion of the plaintiffs, the suit was discontinued as to Simpson, Glover & Hight, no service having been had upon either of them. In November, 1889, appellee, Hood, instituted two suits in a justice's court (before W. C. Nelson, a justice of the peace) in Cherokee county, Ala., against one James B. Davis, for the recovery of rents due from Davis as his tenant for the year 1889. One of these suits was for $100, and the other was for $60. Both were commenced by attachments to enforce a landlord's lien for rents, and were levied, one of them on three, and the other on two, bales of cotton that were raised by said Davis on the rented premises in 1889. On the 7th February, 1890, Hood recovered a judgment before said Nelson in each of said suits for the amount sued for and costs, and condemning the cotton that had been attached to the satisfaction of said judgments and the costs of suits. From these judgments no appeal was ever taken, and they were never paid or satisfied, and are still outstanding. On the 20th February, 1890, the replevin bond sued on was executed, and the five bales of cotton that had been levied on and condemned in said attachment suits was turned over by the sheriff (one John S. Blair) who had levied the attachments, and who had the cotton in his possession, to the defendant, Ward (appellant here); and Ward shipped said cotton to Rome, Ga.,-to Simpson, Glover & Hight. Said cotton was never returned to the sheriff or any one for him, and appellee's said judgments are outstanding and unpaid. It was admitted upon the trial and neither the defendant, Ward, nor the sheriff, Blair, at the time of the execution of the replevy bond knew that said cotton (five bales) had already been condemned to the satisfaction of the appellee's said judgments, or that said judgments had been rendered. The other facts of the case are sufficiently stated in the opinion. Among the charges requested by the defendant, and to the refusal to give each of which the defendant separately excepted, was the following: "(4) If the jury believe the evidence, plaintiff is not entitled to recover for money had for the use of the plaintiff." There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Carden & Daniel and R. B. Smyer, for appellant.

Matthews & Whiteside and J. L. Burnett, for appellee.

DOWDELL J.

The replevin bond sued on in this case was executed by the appellant, Charles P. Ward, as a surety with Simpson, Glover & Hight, as principal obligors in the bond. The bond contained the usual conditions of a statutory replevin bond,-to have the property replevied forthcoming to satisfy the judgment rendered. The five bales of cotton, the property replevied, had been levied upon under two attachments sued out in the justice court by the appellee, S. M. Hood, against one J. B. Davis, to enforce the landlord's lien for rent. At the date of the execution of the replevin bond, judgment had been rendered in the attachment suits in the justice court, and a judgment of condemnation for the five bales of cotton. This fact, however, was unknown to the sheriff and the obligors in the bond when the replevin bond was executed and the cotton delivered by the sheriff to the obligors. It is now contended by appellant's counsel that the condition subsequent in the bond, upon the happening of which the bond is to be void, being impossible of performance at the date of the execution of said bond, renders the bond void. This contention, we think, is unsupported by sound reasoning, and opposed to the plainest principles of common justice. Upon the delivery of the cotton to the obligors, and the execution of the bond, there was created thereby a "debitum in...