Austin v. Union Paving & Contracting Co.

This is an appeal from a judgment in favor of plaintiff and from an order denying the motion of defendant, Union Paving and Contracting Company, for a new trial.

The first point to be considered is that the court erred in overruling appellant’s demurrer to the complaint.

The action was brought to restrain and enjoin the defendants from selling a piece of land alleged to be owned by plaintiff under a writ of execution under a judgment in favor of appellant and against one Ellen Mo wry, a former owner of the land. The complaint alleges that plaintiff is and ever since the seventeenth day of January, 1903, has been the owner in fee of the land described in the complaint and sets

The point urged in support of the demurrer is that it is not averred in the complaint that plaintiff, or his immediate grantor, was a purchaser in good faith or for value. Plaintiff, however, according to the allegations of the complaint, is the owner of the legal title. At the time of the conveyance from Ellen M. Mowry a stay bond had been given, and appellant had no lien on the land. She had a right to sell it or otherwise dispose of it, provided she did not dispose of it with intent to defraud her creditors, which intent will not be presumed. A sale of lands upon an execution against the grantor of the holder of the legal title will cast a cloud upon the title and will be enjoined. (Pixley v. Huggins, 15 Cal. 133 ; Porter v. Pico, 55 Cal. 175 ; Einstein v. Bank of California, 137 Cal. 47 , [ 69 Pac. 616 ].) In the latter case it is said: “The plaintiff is the owner of the legal title and in possession. It is presumed, until otherwise determined, that her title is good. The fact that the conveyance was made to her by her husband while indebted to defendant corporation would be a circumstance to be carefully considered in determining the question as to whether or not the conveyance was made with a fraudulent intent as to creditors, but upon an application for a temporary injunction we know of no rule that would require the court to presume that the conveyance was fraudulent, and, before the trial of the question, allow a sale to be made, thus clouding the plaintiff’s title and compelling her to resort to an independent action for tlie purpose of removing such cloud.”

But in the case at bar plaintiff alleged himself to be the holder of the legal title, and as such was prima facie entitled to have his title protected from the cloud that would be cast thereon by the sale under the execution against his grantor. (Pixley v. Huggins, 15 Cal. 133 ; Porter v. Pico, 55 Cal. 175 ; Einstein v. Bank of California, 137 Cal. 47 , [ 69 Pac. 616 ].)

The court did not err in overruling appellant’s demurrer to the complaint.

The only other point in the case concerns the sufficiency of the bond given in the action against Ellen M. Mowry to stay execution of the judgment against her pending the appeal and thus to release her land from the lien of said judgment.

The defendants objected to the admission of the bond in evidence and also raised the same point upon motion for non-suit. The bond is set out in full in the findings and thus the point is again presented in the contention that the findings do not support the judgment. The objection to the sufficiency of the bond is that by it the sureties were not bound in double the amount of the judgment appealed from.

It is alleged in the complaint in this action that the judgment recovered against Ellen M. Mowry was for the sum of $900.29, together with costs in the sum of $90.25. This allegation is not denied by the answer and thus stands as an admitted fact. The bond given was in the usual form and correctly recited the giving of the judgment, except that it stated the amount of the judgment to be $900.99 and costs in the sum of $87.58. After providing for a liability in the sum of $300 to cover costs and damages on appeal, the bond proceeds as follows: “ And whereas said appellant is desirous of staying the execution of said judgment during the pendency of said

It is true that the liability of sureties cannot be extended beyond the true meaning of the terms of their contract, but this rule does not preclude the application of the ordinary rules for the interpretation of contracts. In Longfellow v. McGlynn, 56 Minn. 312 , which was an action against sureties on a bond, the court said: “We are bound to assume that the parties intended the instrument to be effectual, not nugatory. And if what was intended as the condition may be ascertained from the terms, read in connection with the circumstances under which, and the purposes for which', as shown by those circumstances, the bond was executed, it must be sustained. ... To thus ascertain what the parties intended by the instrument executed is strictly consistent with the rule that a surety is not to be held beyond the contract he has entered into. What contract he has made is to be determined by the same rules of interpretation as are applied to other contracts, the purpose being to ascertain what he has bound himself to do. When that is ascertained his obligation is strictly limited to it.”

In London and San Francisco Bank v. Parrott, 125 Cal. 472 , [ 73 Am. St. Rep. 64 , 58 Pac. 164 ], in discussing the rules applicable to the interpretation of the contract of a guarantor, it is said: “But for the purpose of ascertaining the meaning of the language which he has used, and thus determining the extent of his guaranty, the same rules of construction are to be applied as are applied in the construction of other written instruments. His liability is not to be extended by implication beyond the terms of his guaranty as thus ascertained. The language used by him is, however, to receive a

In Swain v. Graves, 8 Cal. 549 , suit was brought upon an appeal bond in which the word “plaintiff” was by mistake used instead of “defendant” or “appellant,” and yet it was held that the action could be maintained. The court said: “An appeal bond will be so construed as to carry out the obvious intentions of the parties. (People v. Judges, 1 Wend. (N. Y.) 28 ; Yocum v. Barnes, 8 B. Mon. (Ky.) 497.) ‘To support the condition of a bond the court will transpose or reject insensible words, and construe it according to the obvious intent of the parties. ’ (1 Saund. 65.) ”

In Grant v. Brotherton, 7 Mo. 458 , the sureties bound themselves in the sum of “two thousand,” and it was held that the bond should be read as though the word “dollars” followed the words “two thousand,” it appearing from the face of the bond that it was given to secure the forthcoming of property of the value of $1,000. The court supplied an omission so as to effectuate the evident purpose of the parties.

“A contract may be explained by reference to the circumstances under which it was made, and the matter to which it relates.” (Civ. Code, sec. 1647.)

The bond now under consideration upon its face showed that it was given to stay execution of a judgment for nearly $1,000, and though the penal sum written in the bond is $200, it is followed by the recital, “being double the amount named in said judgment.” The purpose of the bond was to secure a stay of execution, to do which the law requires a bond in double the amount of the judgment, and of this the sureties are presumed to have knowledge. On reading the bond, with knowledge of the law and the purposes stated in the bond for which it was given, the ordinary mind is forced to the conviction that by a misprision and clerical error there was written in the bond “$200.00” instead of “$2,000.00.” This conviction is further strengthened by the provision in the bond that if the judgment be affirmed, and appellant does not pay the same within thirty days after filing of the remittitur, judgment for the same may be entered against the sureties on motion. This, in fact, was done, as appears from the un

For the foregoing reasons the judgment is affirmed.

Harrison, P. J., and Cooper, J., concurred.