
    Common Pleas Court of Montgomery County.
    State of Ohio v. Lonnie Marberry, et al.
    Decided November 16, 1931.
    
      James C. Baggott, assistant prosecuting attorney, for the State.
    
      L. E. Speer, for defendants Marberry.
   Snediker, J.

This case is before the court on a petition filed by the state of Ohio seeking to foreclose a lien upon property belonging to the defendant Jessie Marberry, which lien arises from a judgment obtained against Lonnie Marberry on April 20, 1931, in the sum of $350.00 on a recognizance bond signed by him for the benefit of Earnest Stovall in the Court of Common Pleas of this county in case No. 8861 of the criminal records thereof. This bond was dated March 2, 1925. Lonnie Marberry was one of the sureties. The other surety has since died.

At the date of the giving of the bond the law of Ohio, as found at Section 13524-1 was:

“Any recognizance or bond approved by the bond commissioner shall forthwith become a lien upon said real estate owned by such party or surety or sureties until the recognizance or bond shall have been exonerated or discharged.”

The real estate involved is what was contained in a disclosure filed by the surety at the time of signing the bond under the requirements of a previous clause of the same section.

When he signed this bond Marberry was the owner of the property described in the petition. The principal (Stovall) on the bond was not tried promptly on the charge contained in the indictment against him and the case went from term to term. Eventually it appears that he left the city and the records of the • board of health of the City of Chicago, 111. show that on November 9, 1928, Stovall died. After that, on April 1, 1929, the legislature of Ohio repealed the section of the General Code under favor of which this bond was given; and in the body of the law, which was intended to be a general code of criminal procedure in this state, is found Section 13435-5, which also gives a lien in favor of the state in the- penal sum of the recognizance.

Such proceedings were had in the criminal prosecution against Stovall (No. 8861) that on December 27, 1930, the bond was forfeited by entry and the clerk was directed, in accordance with Section 13546 of the General Code of Ohio, to certify the recognizance bond to the auditor of Montgomery County. Afterwards it was discovered that the section had been repealed and at the request of the prosecuting attorney the court put on an entry of March 21, 1931, vacating the order of forfeiture and holding it for naught. Then on March 20, 1931, the prosecuting attorney presented an application to the court on which an entry was made again forfeiting bond and ordering that the clerk notify Marberry, under the provisions of the law as it then was, to appear in court and produce the body of Stovall on or about the 18th day of April, •1931. This notice was issued by the clerk and was personally served by the sheriff; and, Marberry not appearing with his principal, Stovall, as required by the notice, the court made an entry of judgment against Marberry in the sum of $350 in favor of the state of Ohio, and execution was directed to be issued upon said judgment.

One very serious complication in this case is the fact that the Security Savings Association is the owner and holder of a note and mortgage upon Marberry’s property, which mortgage was executed on January 11, 1928, to the Ohio Savings & Loan in the sum of $1600. This note and mortgage were used to satisfy a note and mortgage made and delivered by Marberry to the Ohio Savings & Loan on December 19, 1924, in the sum of $1100. So that not only the defendant Marberry is interested in his liability on the bond but also his mortgagee and also his wife to whom the property has since been conveyed by Marberry (March 18, 1930).

In the answer of the defendant Marberry filed in this case is a recitation of the fact of the death of Stovall and he says, “that he would, comply with the obligation expressed by said bond if the defendant Earnest Stovall was alive.” We may fairly infer that he would have had the same mind had Stovall been alive on April 18, 1931.

There are some things which excuse the performance of the obligation of a bond of this character. And here we may say that while the lien subsisted from the time of the delivery of the bond and its acceptance by the state as such, yet in the instant case the state is- seeking to enforce the judgment in which the bond is merged, and if the judgment be not authorized or proper under the conditions here present it ought to be vacated and this defendant relieved therefrom.

Was it proper to render a judgment against Mar-berry under the facts herein recited?

In the 3rd volume of Ruling Case Law, at page 55, under the general heading of “Bail and Recognizance,” we find the following, which is supported by authorities attached to the text:

“An act of God rendering the performance of a condition in a recognizance impossible always discharges the party bound from performing the obligation. Thus, where the principal in a bail bond dies before judgment is rendered against the surety so as to put it out of the power of the latter to surrender him in execution, the bail is discharged. And this is true although the bond may have been forfeited before death if the death occurs before judgment on the bond, and a judgment entered after the death of the principal may be vacated.”

Primarily a bond is given to secure the state against loss if an accused person flees the jurisdiction. The state does not need any such security after the death of the principal on the bond. So that it appears to us that if the court vacate the judgment rendered against Mar-berry on April 20, 1931, it would only be doing what the law warrants and reason dictates. The impossibility of the performance of the obligation of the bond releases the obligor. “There is no obligation to do impossible things.” We aré of the opinion that until this matter has been brought to the attention of the criminal court and has been passed upon, no such decree ought to be rendered as prayed for in the petition. . The casé may pend awaiting future developments.  