460 SUPREME COURT OF ARKANSAS, [39 Ark. Mayfield v. Creamer. MAYFIELD v. CREAMER. BOND: Of vendee of personal property, in action to enforce vendor's /ion. The bond authorized by act of March 9, 1877, to be given by the defendant in an action by the vendor against him to enforce his lien upon personal property for the purcha.se-money, is absolute for the payment of the judgment recovered in the action, and can not be avoided by an offer to deliver up the property, or by a plea that the vendor had no title to it. APPEAL from Phillips Circuit Court. Hon. J. N. CYPERT, Circuit Judge. j ohn. C. Palmer, for appellant: The intention of the Legislature was to secure tbe property sold by the vendor in the hands of the vendee and
39 Ark.] NOVEMBER TERM, 1882. 461 Mayfield v. Creamer. subject it to the payment of the debt (Act March 9, 1877), and not to go beyond or outside of the property sold, or to substitute personal liability therefor. See Ward v. Carlton et al., 26 Ark., 662. The bond is similar to that in replevin, aad the liability the same (sec. 5042 Gantt's Digest), and may be discharged by delivery of the property. Where property is taken from sureties by process of law, over which they had no control, they are discharged. Brandt on Suretyship and Guaranty, 553, sec. 419; 12 Wend, 589. M. T. Sanders, for appellee: 1. The first part of the answer raises only a question of law. Creamer v. Creamer, 36 Ark., 92. 2. The second part was the same defense set up in. the original suit, in which appellee had judgment. The judgment is conclusive, in the absence of fraud. Freeman on Judgments (1st ed.), secs. 176, 180; Collin v. Mitchell, 5 Fla., 371; Heard v. Lodge, 20 Pick., 53; Stovall v. Banks, 10 Wall., 583. If a man undertakes to pay a judgnient which may be recovered against another, he can not go behind that judgment. Church v. Barker, 18 N. Y., 463; Castle v. Noyes, 14 N. Y., 329; Brown, v. Sprague, 5 Denio, 545. 3. The liability attaches on the rendition of the judgment against defendant (11 Ark., 697; 30 Ib., 351.) This was such a bond as contemplated by sec. 416 Gantt's Digest. and no inquiry can be made as to the sufficiency of the ground of attachment, seizure of property, nor the liability of the property taken, etc. • Hazelrigg v. Donaldson, 2 Mete. (Ky.), 445. "When a defendant bonds property, plaintiff looks not to the property attached, but to the bond for a satisfaction. of any judgment he may obtain." 26 Ark., 665.
462 SUPREME COURT OF ARKANSAS, [39 Ark. Mayfield v. Creamer. EAKIN, J. Cassa Creamer sued Mayfield as surety on a. bond, which had been given by Peter Creamer and W. D. McMasters . , defendants in a former suit against them by Cassa Creamer to recover the price of personal property sold to them, and in their possession. The suit was under the act of the ninth of March, 1877. The bond executed by the defendants and Mayfield was to the effect that th3 said defendants would perform the judgment of the court in that action. These matters are set forth in the present complaint, with the further allegations that complainant recovered the sum of $344.50 on the sixth of June, 1879, and that it remained unpaid. Defendant, in his answer, not paragraphed, set up two grounds of defense: First, that the bond was given as provided by law in replevin (section 5042 Gantt's Digest), was the same in form, and should have the same effect— that is, to o secure the forthcoming of the property; second, that the original vendor of the property, for the price of which the former action was brought, was not in fact the owner of a great part of it, specifically described, and that, after the execution of the bond, that portion had been recovered from the vendees in an action of replevin by a third party. He offers to return the remaining portion. A demurrer to this answer was sustained, and defendant am pealed. The statute of March 9, 1877, was construed by this court in the case of Creamer v. Creamer et al?, 36 Ark., 91, in which it was held that the bond contemplated therein was not in the nature of the retaining bond in replevin, but rather like that provided for . in section 416 of . the Digest, in case of attachment, in order to have it discharged. Such a bond, in effect, as well as in terms, is absolute, to perform the judgment of the court. It is, then, matter of indifference to the plaintiff what becomes of the property.
39 Ark.] NOVEMBER TERM, 1882. 463 He relies upon the bond. It is no defense to the bond to say that the vendor had not title. That might be pleaded in the original suit, and if the defendant should set it up, he ought not to wish to retain the property, or call in sureties to enable him to do so. If he does the latter, lie and his sureties must be held to their undertaking, and must abide the judgment of the court. The first part of the answer set up was matter of law. Tha second part showed no facts constituting a defense. The de-murrer was properly sustained. Affirmed the judgment.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.