Wren v. Peel

Citations

• 64 Tex. 374

Syllabus

<p>1. Judgment lien — Replevin — Principal and surety — Execution — Subrogation.— A writ of possession issued December 32, 1877, on a judgment against W., which included an execution under that judgment against W. as principal, and T. and three others as sureties of W., within a year after its rendition. The sureties had become liable, as such, on a replevin bond given to retain possession of the land. Another execution was issued January 19, 1878, against all parties, within a year, which was returned on account of a supersedeas sued out by the principal and all the sureties, except T., who had failed to join in suing out a writ of error. The judgment was affirmed on error, June, 1879, but never recorded. A third execution issued January 23, 1880. Four other executions issued at intervals of less than a year, and under the last one the land of T. was sold to satisfy the judgment. Held:-</p> <p>(1) T. being but a surety, though the judgment against him as such on the replevin bond was binding until reversed, yet it did not change his relation as surety.</p> <p>(2) The relation of surety, as a continuing one, should be recognized as between the parties themselves and protected under the rules of equity, in the absence of some controlling statute, when the rights of the creditor are not prejudiced.</p> <p>(3) Though the statute provided that the judgment rendered against the parties to the replevin, bond should be joint and several, an execution could not issue against one of the sureties while the principal and the other sureties were prosecuting, under a supersedeas bond, a writ of error.</p> <p>(4) The condition in the replevin bond was “that the defendant will not injure such property, and that he will pay the value of the rents of the same in case he shall be condemned so to do.” The principal could not be held to have violated, according to any final judgment, that condition, so long as he was prosecuting, under a supersedeas, an appeal from it.</p> <p>(5) The j