Brown v. Murdock

A counter-secwity bond, given to sureties Upon an executor’s bond, stipulated that the executor should well and truly perform his duties, assueh, and that the obligors should, from time to time, and at all times thereafter, save, defend, keep harmless and indemnify such sureties, and their property, from all actions, suits, payments, costs, charges and damages, by reason of their suretyship on the testamentary bond. Held: 1st. That this bond is responsible for a judgment against these sureties, and which they have been compelled to pay, even though the devastavit by the executor, upon which such judgment was founded, was committed before its execution and delivery. 2nd. Indemnity against apprehended loss, by failure of the executor, who has wasted or misapplied the assets, to satisfy judgments against him therefor, is within the intent and provisions of the law authorizing counter-security bonds to be given. A plea, by the obligors in a counter-security bond, that the sureties in the executor’s bond had not defended the action against them on such bond, but had suffered the judgment to be recovered by their default and without any defence, is defective in not averring that there was a legal defence which they might have made to the action. A counter-security bond was signed by the defendants on the 21st of March 1851, and left in the possession of the principal obligor and executor, who had been required by the orphans court to execute such a bond to the plaintiffs as sureties on the testamentary bond. It was next seen, in December 1851, among the official papers of the register of wills, which were to he acted upon by the court, and was approved by the court on the 9th of March 1852. Held: 1st. That the presence of the obligors, in person or by attorney, was not necessary to the valid delivery of the bond; the facts of this case, and reasonable deductions from them, are sufficient to support the plaintiff's’ averment under the plea of non est factum. 2nd, It was not their obligation as a statutory bond until approved, but if the defendants allowed it to remain in the office of the register of wills until approved, they cannot avoid the consequences, and the delay in its approval cannot operate against the plaintiffs, the obligees therein. Delivery as well as approval may depend on circumstances, such as the place where the bond is found, the endorsements upon it, and inferences fairly deducible from the facts of the transaction.

Appeal from (he Circuit court for Charles county. Action, brought on the 9th of November 1858, by the appellees against the appellants and Joseph Murdock, upon a counter-security bond, executed on the 21st of March 1851, by the defendants and Louisa A. Murdock, since dead, to the plaintiffs, as obligees, in the penalty of $3U00, and approved by the orphans court on the 9th of March 1852, and conditioned thus: <iThe condition of the above obligation is such, that whereas the above named John Murdock and William II. Brawner, at the instance and request of the above bounden Joseph Murdock and Louisa A. Murdock, executors of Thomas Murdock, deceased, became bound, together with the said Joseph Murdock and Louisa A. Murdock, to the State of Maryland, in the sum of $10,(100, current money, as securities on the testamentary bond of the said Thomas Murdock, deceased, as by said bond or obligation and condition thereof, remaining in the register of wills’ office in Charles county, reference thereto being had, will more fully appear, if, therefore, the said Joseph Murdock and Louisa A. Murdock, executors aforesaid, shall do, well and truly perform the acts of executors of the said Thomas Murdock, deceased, as aforesaid, according to law, and do and shall perform all and every other act, matter and thing, on the part, of the said Joseph Murdock and Louisa A. Murdock, to be done and performed, according to the true intent and meaning of the said recited obligation, and also shall and do, from time to time, and at all times hereafter, well and sufficiently save, defend, keep harmless and indemnify the said John Murdock and William II. Brawner, his heirs, executors and administrators, and his goods and chattels, lauds and tenements of and from all actions, suits, payments, costs, charges and damages by reason thereof, then the above obligation shall be void, it shall otherwise remain in full, force and virtue in law.” The declaration alleges as a breach of this bond, that the said parties in the said condition mentioned, did not, from time to time, and at all times after the making of said bond, well and sufficiently save, defend, keep harmless and indemnify the said plaintiffs from all actions, suits, payments, costs, charges and damages incurred in consequence of their securityship on the testamentary bond aforesaid of Thomas Murdock, deceased, hut the said plaintiffs in fact say that judgment was obtained against them on said testamentary bond, together with Joseph Murdock, at the December term 1857, of the Circuit court for Charles county, at the suit of the State of Maryland, at the instance and for the use of John H. Cox, guardian to Balaam Murdock, for the sum of $1583.93|-, with interest from the 9th of December 1857 until paid, and costs, which said judgment, the said plaintiffs have been required to pay, and have paid to the party for whose use said suit was brought and judgment obtained. Whereupon the plaintiffs claim $3000. The defendants, Brown and Cawwood, appeared and filed ten pleas, of which the first, seventh and eighth were subsequently withdrawn. The others are, in substance, as follows: 2nd. That no devastavit was committed of the propeity and assets of Thomas Murdock, deceased, by the said Joseph Murdock and Louisa A. Murdock, as his executors, after the alleged bond sued on in this cause was received and approved by the orphans court of Charles county. 3rd. That no such devastavit was committed after the date when the alleged bond purports to have been executed. 4th. That the judgment recovered in the case of the State use of Cox, guardian to Balaam Murdock, at December term 1857, of the Circuit court for Charles county, and which is the judgment sought to be recovered in this suit, was recovered against the plaintiffs in this suit as defendants in that suit, by their default, and without any defence by them, either in person or by attorney or counsel, and therefore, they ought not to have and maintain this their action against these defendants. 5th. That all and every devastavit of the property and assets of Thomas Murdock, deceased, if any, was committed by his said executors, before the date when the alleged bond purports to have been executed. 6th. That all and every such devastavit, if any, was committed before the alleged bond was approved by the orphans court of Charles county. 9th. That the alleged bond, sued upon in this case, was not executed and delivered by these defendants and is®not their act and deed. 10th. That the alleged bond sued on in this case is not their deed. The plaintiffs demurred to the 2nd, 3rd, 4th, 5th and 6th pleas, and assigned as causes of demurrer: 1st, as to all these pleas except the 4th, that they assert the liability of the defendants only for devastamis committed after the execution and approval of said bond, whereas, by its condition, they are liable for devastamis committed before its execution and approval, and that said pleas do not answer the whole declaration in this, that by the declaiation, and bond made part thereof, the defendants are liable for all devasta,vits committed by the executor of Thomas Murdock, and by reason of which the plaintiffs suffered loss and damage, whether such devastates were before or after the execution and approval of said bond. 2nd. As to the 4th plea, that it does not show that the plaintiffs had any defence, whatever, against the judgment in said plea mentioned, or the claim upon which said judgment was obtained, and that no fraud is alleged in said plea. These demurrers were sustained by the court, (Crain, J.,) and the case was then tried upon issues joined upon the 9th and 10th pleas. Exception. The plaintiffs proved the signatures of the defendants to the original bond, upon a copy of which this suit was brought, and further proved by T. A. Smith, register of wills for Charles county, that he was elected to that oflice in November 1851, and entered upon its duties in December of that year, and that from his own recollection, and as it appeared from the records of the orphans court for that county, and from an endorsement of approval with his signature appended as register, said original bond was approved by said orphans court on the 9th of March 1852; that all bonds were considered as recorded from the time they were received and approved by the court, and that the term of the court at which this bond appears to have been received and approved, commenced on the 2nd of February 1852, and ended on the second Tuesday of April following, and that it appeared from an inspection of this bond, that there was no endorsement upon it except that of approval and recording as above stated; that when he entered upon his duties as register, in December 1861, he received this bond from Daniel Jenifer, his predecessor, and the then register, and that it was found by .him in the desk of the register in which was kept the papers of his office, which were to be acted upon by the court. Upon cross-examination this witness stated, that at the time of the reception and approval of this bond, he had no recollection that either of the defendants was present in the orphans court. The defendants then proved, by R. T. Tubman, who was elected judge of the orphans court for Charles county in November 1851, entered upon the duties of his office on the 2nd of December of the same year, and served out his full time, that from his own recollection, and as it appeared from the records of the proceedings of said court, which were then in court and inspected, he was present on the 9th of March 1852, when the bond was received and approved as above stated, and that at the time of such reception and approval neither of the defendants were present in the orphans court, and that he never saw either of them in said court in reference to the reception and approval of said bond. They further proved by R. W-. Bryant, the subscribing witness to said bond, that he'was present when it was signed by the defendants, and witnessed the signing of the same; that it was signed at the house of Joseph Murdock, one of the principal obligors therein and one of the executors of Thomas Murdock, deceased, and that the residence of said Joseph Murdock was about twelve miles from the office of the register of wills of Charles county, and that after the bond was signed by the defendants it was left in the possession of the the said Joseph Murdock. The defendants then closed their case, by proving from the records of the orphans court for Charles county, that on the 20th of January 1851, at the instance of the plaintiffs, the said court ordered that Joseph Murdock and Louisa A. Murdock, the executors of Thomas Murdock, should execute a counter-security bond to the plaintiffs, as securities on the testamentary bond of said Thomas Murdock, and also proved payment of the judgment for the recovery of which this suit is brought. Upon the aforegoing evidence, the defendants asked the court to instruct the jury: 1st. That the aforesaid bond was signed and left with Joseph Murdock, as stated by Bryant, the subscribing witness, on the 21st of March 1851, and was not received and approved by the orphans court until the 9th of March 1852, and that the defendants were not present and consenting to the reception and approval of the said bond by the said court, that then there was not a sufficient delivery of said bond, by the defendants, to bind them, and the plaintiffs are not entitled to recover. 2nd. That, unless 'the jury find there was a delivery of the bond in this case, either in person or by attorney, to the orphans court, by these defendants, there was not a sufficient delivery of the said bond to bind these defendants, and the plaintiffs cannot recover. 3rd. That if the jury find, that the bond in this cause was signed and left with Joseph Murdock, as stated in the testimony of Bryant, and was not received and approved by the orphans court until the 9th of March 1852, that an unreasonable time elapsed between the signing and the reception and approval thereof, and that the plaintiffs are not entitled to recover, there not having been a sufficient delivery to bind them, unless the jury further find that the defendants were present in the orphans court, in person or by attorney, consenting to the reception and approval of said bond. The court rejected these prayers, and to this ruling the defendants excepted, and the verdict and judgment being against them, appealed.