Thompson v. Thompson , 19 Me. 244 ( 1841 )

The opinion of the Court was delivered by

Tenney J.

This is a case where the demandants have obtained judgment in the name of the Judge of Probate, on a bond executed by their guardian, against the sureties thereon, one of whom was the grantor to the defendant of the land in controversy, and have made a levy of an execution issued on said judgment.

The demandants attempted to impeach the conveyance to the defendant as fraudulent against creditors, and the only question is on the correctness of the ruling of the Judge who presided in the trial, that the demandants were creditors at the time of the conveyance, and so at liberty to take that ground. The verdict settles the fact of a fraudulent conveyance; but whether by actual or legal fraud, does not appear, and we do not consider it material. It is insisted, that as there was no breach of the bond, consequently no cause of action arising thereon at the time of the execution and delivery of the deed to the defendant, he was not a creditor. The demandants rely upon the case, Seward, plaintiff in error, v. Jackson, 8 Cowen, 406, in which the judgment rendered for the defendant in error, reported in 5 Cowen, 67, was reversed. Other cases are cited on the same side, as analagous to the one at bar. The judgment in 5 Cowen was reversed, but it appears, that it was not in consequence of a supposed error in the court in regarding the defendant in error a creditor, — On this question the chancellor gave no opinion, but after fully considering other points in the case, thought the judgment should be reversed for error in the court on those other points. — One senator thought there were fatal errors other than the one discussed upon that point, and was of opinion, that the defendant was not a creditor ; another was in favor of reversing the former judgment, though he held him to have been a creditor ; no other member of the court of errors discussed the questions presented in the argument. The decision then of the court in the first case reported, is not to be considered as disturbed on the question now under consideration, and in the opinion of the court it is said, “ the demand in this case, fundamentally as it is expressed by Roberts, in his treatise on fraudulent conveyance, p. 459, arose before the conveyance. It arose upon a covenant prior in date to the conveyance, for the performance of a collateral, and if you please, contingent act. But it cannot be said, that the covenanter was ignorant of his liability, &c. The demandants also cite the case of Howe v. Ward, 4 Greenl. 195. In that case there was a breach before the conveyance, but the remarks of the court apply to this case, and we think they are sound. Mellen C. J. says, “ so far as the obligee of a bond or the promisee of a note is concerned, the principal and sureties are each and all equally liable, but as between and among themselves each surety is liable for his proportion. What, then, is the relation in which one of the sureties stands to each of the others ? The answer is, at the time of executing an instrument by several persons as sureties each one impliedly promises all tire others, that he will faithfully perform his part of the contract and pay his proportion of loss arising from the total or partial insolvency of the principal, and to indemnify them against any damages by reason of his neglecting so to do. A similar promise is implied on the part of the principal, to indemnify and save harmless each of the sureties. This promise is in both cases conditional in its nature. The principal may remain solvent and punctually pay the debt; and again, in the case of the failure on the part of the principal to pay, each surety may honestly pay his due proportion. It is a promise, which may never be broken, but it is binding until it is broken or performed. In this respect such a promise resembles that by which a man binds himself to pay a certain sum of money on a certain day ; here a debt exists in presentí, though payable in futuro. The debt exists long before the right of action accrues for its recovery.” All these obligations and implied promises arise from the express and direct covenant in the bond. The latter is the only foundation on which they can rest, and without that basis, they cannot exist; and consequently it cannot be less binding than those which grow out of them.

What is the object intended to be secured, by the requirement of the statute, that such a bond shall be taken ? Can it be .treated as having no existence, until there is some mismanagement, some pecuniary liability aside from the bond, resting upon the principal obligor ? Or is it not rather that there shall be the acknowledgement of an existing debt, to be cancelled only, when all duties required are fully discharged ? It is given in the expectation, and it is accompanied with the power and the duty of taking the whole property of the ward into the custody of the guardian, whatever the amount may be. Those to be benefitted, are incapable of speaking for themselves, and protecting their own rights; their property, it may be, to almost an unlimited amount, is secured by nothing but the official bond of the guardian. To the Judge of Probate is entrusted the power to guard these rights of wards, which are often beyond their own control, and his duty is co-equal to his power. He is required to take to himself a bond sufficient in amount and ability, of the obligors, to cover all probable contingencies. The Judge would be treacherous to this high trust, if he accepted sureties not possessed of means adequate to the restoration to those entitled, of the property received. Gross negligence in this respect would be visited by impeachment and removal from office. And why all this requirement for the protection of minors and others incapable, if the obligors can immediately after and before any breach of the bond, divest themselves of all which rendered their names valuable, by voluntary or fraudulent conveyances ? The treatises on the 13th and 27th Elizabeth, regard all obligees in bonds as creditors from their execution, and Lord Mansfield has said, “these statutes cannot receive too liberal a construction, or be too much extended in suppression of fraud.” Cadogan v. Kennett, Cowp. 432. The sureties on such bonds know their liability, and are supposed to be apprized of their danger, often before a breach. They may see the extravagance and mismanagement, generally, of their principals, before any of the property which they are appointed to protect may have come to their hands: they may wish to escape from their obligations, whether present or future, and the doctrine contended for by the demandant’s counsel, would enable them always to shun their liability, throwing the loss from themselves upon those, who, it is the plain intention of the law, should be made secure.

We are, therefore, of the opinion, that the only instruction objected to was correct, and that there must be

Judgment on the verdict.