Article 7103, R.S., provides:
"When property has been sequestered, the defendant shall have the right to retain possession of the same by delivering to the officer executing the writ his bond, payable to the plaintiff, with two or more good and sufficient sureties, to be approved by such officer, for an amount of money not less than double the value of the property to be replevied."
Article 7105, R.S., provides:
"If the property be real estate, the condition of such bond shall be that the defendant will not injure the property, and that he will pay the value of the rents of the same in case he shall be condemned so to do."
The replevy bond in the instant suit is in the very language prescribed and has all the requirements of the above articles of the statute, with the exception that it is signed by but one surety, C. C. McCarthy, the appellant. The principal question presented by the assignments is that of whether or not the court erred in holding, in effect, that the bond sued upon, while not good as a statutory bond, was, under the facts of this case, good and enforceable as a common-law obligation. This appellant surety specially insists that he is not legally liable thereon at all, as the bond is in terms purely a statutory bond, required by law to be executed by two or more sureties, and is not binding on one surety when executed by him alone. The practical and general difference between a "common-law bond" and a "statutory bond" is that the latter conforms to all the requirements of the statute, while the former does not. It is quite generally held that where "the terms and conditions" of the bond substantially deviate from "the conditions" prescribed by a statute, or where a bond is voluntarily given when not at all required by law, it is deemed a common-law and not a statutory bond. 4 Elliott on Contracts, § 3503; Dignan v. Shields, 51 Tex. 322; Leona I. M. C. Co. v. O. M. Roberts, Governor, 62 Tex. 615; Bank v. Lester, 73 Tex. 547,11 S.W. 626; Jacobs v. Daugherty, 78 Tex. 682, 15 S.W. 160. Provided, however, where a bond is compelled and taken under color of legal authority, which, independently of the statute, the principal in the bond was neither legally nor morally bound to give as a prerequisite to the exercise of the right, that the bond is not enforceable and will not be binding as a voluntary bond at common law. Johnson v. Erskine, 9 Tex. 1; 9 C.J. p. 28. Furthermore, it is held that, even though a bond in terms of the statute may have only one surety, whereas the statute requires two, it may yet under special circumstances be sustained as a valid common-law obligation. Bernheim Co. v. Shannon, 1 Tex. Civ. App. 395,21 S.W. 386; Harris v. Taylor Co. (Tex. Civ. App.) 173 S.W. 921; 5 Cyc. p. 731.
In view of these decisions, the bond in issue is not good as a statutory bond, because there is failure of the legal requirements to have thereon "two or more good and sufficient sureties." The statute being notice to all parties concerned that at least two sureties were required in order to be a legal bond, the surety here, in the absence of a specific express waiver that there be two sureties, may insist that he is not liable thereon as a purely statutory bond. And still, to be good as a common-law bond it must have all the requisites of a voluntary obligation such as would legally require it to be pronounced valid as a common-law bond. Clearly, in the facts, it was not given through coercion or duress under color of legal authority operating to make it not binding as a voluntary bond. Independently of the statute S. T. Maddox, the defendant in the sequestration writ, was not legally entitled to the possession and use of the land pending the litigation after it was sequestered. To be legally entitled to the possession and use of the land he was required to give a bond therefor. The sheriff executing the writ and bonding the property was not authorized to deliver possession pending litigation to the defendant in the writ without a *Page 1056 bond as required by law. Therefore the defendant in the writ in tendering a bond to the sheriff with the view and purpose of obtaining thereby the possession and use of the land pending litigation, which he was not legally entitled to have without a bond, was not doing an act wholly involuntary and more onerous than prescribed by law. In such circumstances the giving of the bond is not wanting in the mutual assent of the defendant in the writ to be bound by its terms and effect. Further, in going into possession and using the property under the bond in virtue thereof there is evidenced the assent of the principal of the bond to the benefit and terms of the bond; and there is little doubt, in the facts here, that the principal regarded the bond as binding upon him. Of course, the officer taking the bond here was not authorized by the law to make a common-law obligation with the principal making the bond, and, therefore, to sustain the bond as a common-law bond, it must further appear, in substance, that the obligee in the bond, now seeking to enforce same, consented to the contract or obligation, as it is executed, with the makers thereof. There does appear evidence to show ratification, both as to principal and surety, sufficient to sustain the trial court's finding in that respect, as involved in the judgment. Wooters v. Smith, 56 Tex. 198.
The bond, then, having, as it appears from the facts, all the elements of a common-law obligation as to the maker of it, the further pertinent question is, Is the surety, as a legal consequence, bound thereby? Whatever may be said of that question under facts different from those here, it is believed that, under the special facts of this case appearing in the record, it should be said that the surety is legally bound by reason of his assent to the obligation in suit. Assent of such surety that the principal in the bond could and should have possession and use of the property pending the litigation under the bond as it was executed is reasonably inferable from all the facts of the case; and as such fact is necessarily involved in the court's judgment, such finding of fact must be taken and sustained on the appeal. Appellant, it is true, testified that he was promised that another surety should sign the bond with him, but there is evidence to the contrary; and on this conflicting evidence the trial court's finding, involved in the judgment, will be sustained. Therefore the facts are to be viewed as if no such agreement was made, and consequently no fraud nor breach of contract, in legal effect, was practiced upon such surety.
However, it is here observed that, had it appeared that such surety relied only upon the statute being complied with and additional sureties being obtained before filing the bond, a serious question would be presented of any legal liability of the surety, considering the fact that the conditions of this bond are in strict language of the statute. But special facts appear in this record authorizing the inference of fact, as presumably made by the trial court, that the surety did not sign the bond as surety as a mere gratuity in faith of the statutory requirement that additional sureties be obtained, but only upon a special contract so to do for a consideration paid and a deposit of money as indemnity against liability as a surety. He, as admitted, under the contract so made was to receive, and did receive, a certain sum of money, equal to the anticipated damages in this case, from the principal in the bond, for the very purpose of applying it to the satisfaction and extinguishment of any judgment obtained by the obligee in the bond against the principal and the surety on the bond. It is apparent from the further circumstances that such surety actually knew at the time that the principal in the bond, in faith and reliance of the bond executed at the time and of the indemnity placed in the surety's hand, intended and would have obtained and continued possession and use of the property sequestered pending the litigation. By the contract the surety was authorized to apply his principal's money to pay any judgment on the bond and extinguish the liability of the principal and surety to the full extent of the security. It is not against the law or the policy of the law for such surety to so specially contract. There was a valuable consideration passing for the contract. It was, as the court was authorized under the evidence to treat it, purely a voluntary contract of suretyship evidencing an intention, in the light of the whole evidence here, to be bound by his undertaking as executed, independent and regardless of statutory requirement as to additional sureties. A cosurety on the bond could, in the light of the facts, have been of no more legal benefit to such surety than the indemnity in his hands available to extinguish all his liability. By the indemnity available to pay and discharge any liability on the bond such surety was benefited and relieved of any necessity to bring suit against the principal for reimbursement of any judgment paid, or against any cosurety for contribution. Upon the ground of assent of the surety to be bound by the bond as it was executed and delivered, he will be held to be legally bound as upon a voluntary obligation good as a common-law bond.
We have examined the other assignments, and think they should be overruled.
The judgment as to both appellants is affirmed. *Page 1057