Willard v. Fralick

• Decision Date: 13 April 1875
• Citation: 31 Mich. 431
• Court: Michigan Supreme Court
• Parties: Henderson Willard and others v. Henry Fralick

31 Mich. 431

Henderson Willard and others v. Henry Fralick

Supreme Court of Michigan

April 13, 1875

Heard April 8, 1875

Error to Kent Circuit.

Judgment reversed, with costs, and a new trial granted.

G. H White, for plaintiffs in error.

Eben Smith, for defendant in error.

Campbell J. Graves, Ch. J., Cooley, J., concurred.

OPINION

Campbell, J.:

Willard presented a claim against Canfield's estate, for the proceeds of certain lands deeded to Canfield to be disposed of, in which Willard was to have all the proceeds beyond one thousand dollars and interest and commissions, retaining the right to find a purchaser himself within two years, if not sold by Canfield within that time. Canfield disposed of the property for other lands, which he also conveyed to third persons, and Willard seeks to get the value of the lands which were thus obtained and conveyed.

The commissioners allowed a balance of set-off so as to bring Willard in debt to the estate two hundred and forty-nine dollars and eleven cents. He appealed to the circuit court of Kent county, where judgment was rendered against him, for four hundred and sixty-nine dollars and fifty cents damages, and against him jointly with his sureties on appeal, for costs. They all bring error.

The first error to be noticed is the judgment against the sureties. No authority exists for such a judgment. Their bond is conditioned that the appellant shall prosecute his appeal to effect, and pay all damages and costs which may be awarded against him on such appeal.--C. L., § 4440. The power to render judgment against sureties on bonds in legal proceedings, without a separate action, is statutory, and cannot be extended by implication. The general doctrine is, that no one can be subjected to a judgment without a suit against himself. Reliance was had upon § 6133 of the Compiled Laws, which allows summary judgment against persons becoming security for costs. But this bond is not of that nature. It is a bond to abide the result of an appeal, and conditioned to pay all damages as well as costs. The costs are not the principal thing secured, but are merely incidental. The statute allowing the sureties to be included in the judgment does not apply.

Error is also assigned on the allowance of certain claims by way of set-off. One was for three hundred dollars, money lent to Willard by Canfield, and the other was a note of one hundred and five dollars, purchased by the administrator after Canfield's death.

It is claimed that the demand of Willard being unliquidated, the case is not a proper one for set-off at all. But by § 4428, Comp. L., it is provided that "when a creditor, against whom the deceased had claims shall present a claim to the commissioners, the executor or administrator shall exhibit the claims of the deceased in offset to the claims of the creditor, and the commissioners shall ascertain and allow the balance against or in favor of the estate, as they shall find the same to be." This section stands by itself, and the general set-off law does not, in terms, apply to anything but actions. The power of commissioners is peculiar and very broad, and we think the language of this section should not be narrowed beyond its terms, and should allow a proper set-off in all cases. But the set-off, being confined to "claims of the deceased," cannot include demands which never belonged to the deceased; and the one hundred and five dollar...