The statement of the case by the Court of Civil Appeals will suffice for the purpose of disposing of this writ of error. Such statement reads:
"At the inception of this controversy, on June 22, 1922, appellee J. Melvin Adams owned certain sheep and goats and other personal property, situated in Blanco County. On that date, appellant A. Glasscock purchased and took possession of the property. The jury found, upon sufficient evidence, that appellee was induced to make the sale and surrender possession to appellant by reason of the fraud of the latter. Appellee discovered the fraud alleged to have been practiced upon him by appellant, and forthwith instituted suit to set aside the sale and recover the possession of the property, which, in virtue of a writ of sequestration issued at the instance of Adams, was placed in the custody of the sheriff. Appellant Alex Glasscock and others, who had become his codefendants in the suit, replevied the property and resumed possession thereof under a replevy bond executed by the defendants as principals, and the Southern Surety Company and others as sureties. This status was maintained until August 9, 1922, when the parties, other than the sureties, entered into a compromise agreement, by the terms of *Page 495 which appellants agreed to perform certain conditions and retain the personal property, and appellee agreed to dismiss the then pending suit. The suit was not dismissed, however, but upon the trial the jury found, upon sufficient evidence, that this agreement was also procured through the fraud of appellant Alex Glasscock.
"Upon a trial the jury found, as above shown, that appellant Alex Glasscock was guilty of fraud in the particulars stated, and found the value of the property obtained by Glasscock from Adams in consequence of the fraud, together with the increase and revenues thereof. In response to this verdict, and to additional findings made by the court, the latter rendered judgment in favor of Adams against Glasscock and his associates for the sums of $9,500 and $6,659.81, and against the sureties on the replevy bond for $9,500, the amount of the bond, with judgment over in their favor against the principal defendants." Southern Surety Co. v. Adams, 278 S.W. 944.
The Court of Civil Appeals affirmed the judgment of the District Court, 278 S.W. 943. The Supreme Court granted a writ of error to the sureties on the replevy bond, towit: Southern Surety Company, W. D. Glasscock and 4-Paw Glasscock. The cause, on writ of error, was submitted to each section of the Commission of Appeals, and on withdrawal from both sections, to the Supreme Court. The sections of the Commission concurred in recommending the affirmance of the judgments of the District Court and Court of Civil Appeals, after dismissal of the writ of error as to 4-Paw Glasscock, and we have finally concluded there is no reversible error in the action of either of the lower courts.
We are satisfied that the opinion of Presiding Judge Short properly disposes of all questions presented to us and it is therefore adopted, save in so far as we shall modify or enlarge that opinion by what is now written.
By their sixth proposition the plaintiffs in error complained that the judgment was excessive because rendered against the sureties on the replevy bond for the value of more sheep and goats than were included in the sheriff's levy of the writ of sequestration. In support of the proposition, it is urged that the judgment covers the value of 500 goats and 385 sheep, while the levy was on 443 goats and 374 sheep. The writ of sequestration commanded the sheriff to seize 500 goats and 385 sheep. The sheriff's return was to the effect that he executed the writ by taking into his possession, at the Glasscock ranch, the property described in the writ of sequestration, *Page 496 adding that he "was able to find of this property only 443 goats and 374 sheep," but that the defendants had replevied the property described in the sequestration writ. The replevy bond recited that the sheriff took into his possession under the writ of sequestration the entire 500 goats and 385 sheep and the defendants and their sureties acknowledged themselves bound to pay plaintiff $9,500, conditioned that the defendants would not waste, ill-treat, injure, destroy, sell or dispose of the same, and that they would have all said property, with the value of the fruits, hire and revenue thereof, forthcoming to abide the decision of the Court, or would pay the value thereof, and of the fruits, hire or revenue of the same, in case they should be condemned so to do. The sheriff testified that he took the replevy bond to cover all the animals described in the writ of sequestration because when the bond was tendered him, covering all the animals, the defendant A. Glasscock admitted he had all the sheep and goats, declaring he could find those not then present.
Where defendants in sequestration and their sureties represent to the officer commanded to sequester certain property that a defendant has such property in his possession and voluntarily tender a bond to account for such property, or its value, with the value of the fruits, hire or revenue thereof, to abide the decision of the court, such defendants and sureties are estopped to question either that a proper levy was made of the writ of sequestration or that the property was delivered over by the sheriff to the defendants. Clearly it was the sheriff's duty to seize all the property described in the writ of sequestration. Just as clearly could the defendants in sequestration waive the actual seizure of part of the property actually in a defendant's hands. Where the parties to a forthcoming bond have waived the seizure of part of the property described in the sequestration writ by tendering a bond acknowledging the principal's possession thereof and promising to have same forthcoming, with its fruits, etc., and have thereby deprived the plaintiff of his legal right to a perfect execution of his sequestration writ, such parties will not be heard to question either the officer's levy or the repossession by defendants of all the property replevied. Litigants will not be allowed to pervert processes of the court and statutory remedies into means of defrauding their adversaries. Hence, the rule is as stated by Mr. Freeman: "Sound public policy requires that persons who are parties to such bonds, either as principals or sureties, should not, after lulling the plaintiff or the levying officer *Page 497 into inaction and a sense of security, be permitted, subsequently, to urge, for the purpose of avoiding their bonds, any irregularity in any of the prior writs or proceedings, except those which are incapable of waiver." 2 Freeman on Executions (3rd Ed.) sec. 264, pp. 1485, 1486; Portis v. Parker, 8 Tex. 23.
The compromise settlement between the plaintiff and defendants, without the consent of the sureties, would have released the sureties from further liability on the replevy bond, but for the court's finding, on appropriate pleadings and evidence, that the settlement was induced by the defendants' fraud. This question is satisfactorily discussed and determined in the case of Red River National Bank v. Bray, 105 Tex. 315 -317, where the court, speaking of the kind of agreement by the principal which will discharge the obligation of the surety declared:
"It does not mean an agreement that the principal has induced by his deceit and fraud, and is therefore wanting in that integrity which the law demands in contracts that it will enforce. It does not mean an agreement which is the result of the principal's artifice, bearing the semblance of a crafty trick and actuated by a dishonest design, under which the creditor is beguiled into a position where his forbearance, thus influenced, is turned against him, and is availed of to destroy the security of his debt. The law will not so protect the fruits of the fraud of the principal, or so penalize the magnanimity of the creditor. Such an agreement is not binding upon the creditor. If it is not binding upon the creditor, it is not such an agreement as will operate to the disadvantage of the surety or the prejudice of his rights. * * * It is not necessary that the agreement of extension be void and not merely voidable, as is held by the learned judge writing the opinion of the Court of Civil Appeals. * * * If the fraud of the principal is sufficient to absolve the creditor from an agreement induced by it, as between himself and the principal, it ought to be sufficient, and we think it is, to prevent the surety from profiting by it to the destruction of the creditor's security."
It is urged by plaintiffs in error that the trial court erred in submitting issues calling for determination of the value of the increase and of the mohair and wool, without requiring findings of the numbers of the increase and of the quantities of mohair and wool, and in refusing to submit special issues calling for finding on such numbers and quantities, with the value of each item of property replevied. The petition for writ of error, at page 51, *Page 498 states as an established fact that "Glasscock disposed of the sheep and goats on August 16, 1922." Plaintiffs in error make no attack on the conclusion of the trial court, reading as follows: "And the Court further finds, from the undisputed evidence, that on or about the 16th day of August, A.D. 1922, the defendants Alex Glasscock, L. Glasscock DeLoach, and D. Glasscock sold and delivered the hereinabove described sheep and goats to the defendant, W. D. Glasscock, by bill of sale, bearing said date, and that said property has since been disposed of and cannot be returned to the plaintiff." Assuming, as we must on this writ of error, that the undisputed evidence established the impossibility of returning any of the replevied animals, because of their conversion many years before by and under principals in the replevy bond, there was but one appropriate, controverted issue of fact as to the fruits of the animals, whether from increase or clip, and that involved only the value of such fruits, and hence the trial court correctly submitted such fact issue, and correctly refused the requested issues. It has never been proper practice to seek by means of a special verdict to ascertain the evidence by which facts are established but instead the province of a special verdict is to find the ultimate facts established by the evidence from which rights may be determined. Just as a party is required to plead facts — and not his evidence to establish facts — so a special verdict is to determine facts and not to recite evidence warranting the finding of facts. It is always improper to submit to a jury questions about the evidence on which their verdict is rested. Emberlin v. Wichita Falls, R. F. W. Ry. Co., 267 S.W. 464; Texas City Trans. Co. v. Winters,222 S.W. 542; Silliman v. Gano, 90 Tex. 645; Fox v. Dallas Hotel Co.,111 Tex. 475; Merchants Ice Co. v. Scott Dodson,186 S.W. 422 (6).
A different question would be presented if we had a case where the impossibility of return of the replevied property was not shown by uncontroverted evidence. There the right to return all or some of the replevied property, in satisfaction of the judgment in whole or in part, would be involved, as in the case relied on by plaintiffs in error such as Blakely v. Duncan,4 Tex. 184. Because courts do not enter futile decrees, they will not undertake to assess values of separate articles replevied by defendants when such assessment could accomplish nothing in the face of impossibility of return of any of the articles. Cole v. Crawford, 69 Tex. 127; Pipkin v. Tinch,97 S.W. 1078; Hill v. Armstrong Mfg. Co., 275 S.W. 1087.
We are urged to reverse the judgments of the courts below because no allowance was made therein for the necessary expenses of *Page 499 caring for the kids and lambs and of clipping and marketing the wool and mohair. It is argued that the rule would be unconscionable which would require parties to a replevy bond in sequestration to account for more than net fruits or profits. The opinion of Judge Short contains the conclusion that plaintiffs in error would have been entitled to a counter-claim against defendant in error for these expenses, had such counter-claim been plead. However, it is only just to Judge Short and Section B of the Commission of Appeals to state that subsequent reconsideration led them to adopt the view that a proper construction of Article 6850 of the Revised Statutes requires the makers of the replevy bond for personal property to account for the property and the value of its fruits, without diminution for expenses.
The statutes require parties seeking to retain possession of sequestered personal property, and their sureties, to obligate themselves to have the property forthcoming with the value of its fruits, hire, or revenue, to abide the court's decision, or to pay the value of the property and of the fruits, hire, or revenue of the same, in case the court so adjudges. The word "fruits" in its ordinary signification includes the increase and the clip of replevied goats and sheep. Webster states that the word includes "offspring," and "that which is produced." So, if the obligation of the bond in conformity to the statute is attempted to be met by the production of replevied goats and sheep, not only must the goats and sheep be returned, but the obligors in the bond must also account for the value of the offspring, wool, and mohair of the goats and sheep. If the replevied goats and sheep cannot be produced, the value to be accounted for is the value of the goats and sheep and of their offspring, wool, and mohair. As the word "value" is used in the statutes and bond, it obviously means the proper price which the replevied property and its fruits would bring. The words of the statute and bond provide for no deduction from such value for expenses in handling the replevied property or its fruits, and the courts have no warrant for allowing same.
The judgment in this case accords with the command of article 6852 of the Revised Statutes that:
"In case the suit is decided against the defendant, final judgment shall be entered against all the obligors in such bond, jointly and severally, for the value of the property replevied, and the value of the fruits, hire, revenue or rent thereof as the case may be; and the value of the property replevied shall be proven either as of the time *Page 500 of the execution of the replevy bond or as of the time of the trial, as the plaintiff may elect."
Much of what might seem harshness in results from thus interpreting the statutes disappears when you consider the nature of these proceedings. The suit puts in issue the defendant's title. His possession is disturbed, before judgment, by the officer executing the writ of sequestration, only after his rights have been fully safeguarded by the bond for sequestration. It is only when he is not satisfied with the protection afforded by the bond, and demands immediate possession, before the plaintiff's title can be adjudicated, that he need give the replevy bond. When he does elect to give it, he has full knowledge of its plain obligations. By conserving the property and the value of its fruits he may use same to discharge a judgment against him. If, as in this case, he voluntarily disposes of the property which the plaintiff has sought to preserve by his suit and sequestration, he cannot greatly complain, because after being adjudged without rightful claim to the property, he is compelled to restore to the true owner the full value of the property and its fruits. If the conditions of the bond, under the statutes, be unduly harsh, the remedy comes within the legislative and not within the judicial power.
Finding no reversible error in the judgments of the District Court and Court of Civil Appeals, the same are hereby affirmed.