
    WILSON et al. v. DICKEY.
    (Court of Civil Appeals of Texas.
    Nov. 30, 1910.
    Rehearing Denied Jan. 4, 1911.)
    1. Sequestbation (§ 20) — Appeal and Eb-boe (§ 1244) — Action—Pabty—“Contbact.
    Under Rev. St. 1895, art. 1204, permitting sureties on any contract to be. sued without joining the principal, when he is actually or notoriously insolvent, the principal in a replevy bond and a supersedeas bond need not be joined as defendant, where it is alleged and proved that he'-is actually and notoriously insolvent; such bonds “being “contracts” within the statute.
    [Ed. Note. — For other eases, see Sequestration, Dec. Dig. § 20 ; Appeal and Error, Cent. Dig. § 4797; Dee. Dig. § 1244
    
    For other definitions, see Words and Phrases, vol. 2, pp. 1513-1534; vol. 8, pp. 7615-7616.]
    2. Sequestbation (J 20) — Appeal and Ee-boe (§ 1239) — Remedies op Cbeditob — Sep abate Action.
    The liability of sureties on replevy bond and supersedeas bond, in an action of trespass to try title, not having been enforced in the original suit, an independent suit may be maintained on the bonds.
    [Ed. Note. — For other cases, see Sequestration, Dec. Dig. § 20 ; Appeal and Error, Cent. Dig. §§ 4785-4786; Dec. Dig. § 1239.]
    3. Husband and Wipe (§ 270) — Disabilities op Uovebtube — Bonds in Legal Pbo-CEEDINGS.
    In an action on a replevy bond and a super-sedeas bond, given in an action of trespass to try title against a husband and wife to recover land held as community property, the wife was not a proper party, the husband not being made a party to the action on the bond, because notoriously insolvent, and judgment should be rendered against the sureties alone.
    [Ed. Note. — For other cases, see Husband and Wife, Dec. Dig. § 270.]
    Error from District Court, Harris County; Norman G. Kittrell, Judge.
    Action by W. T. Dickey against William A. Wilson and others. Judgment for plaintiff, and defendants bring error.
    Judgment affirmed as to part of defendants, and reversed and cause dismissed as to others.
    Jacob C. Baldwin, for plaintiffs in error. Love & Channell and Chas. H. Taylor, for defendant in error.
    
      
       For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   FLY, J.

This cause was tried on an amended and a supplemental petition, neither of which discloses the name of the plaintiff, and it is only by the style of the case and other facts outside of the pleadings that we are able to ascertain that the suit was instituted by the defendant in error' against William A. Wilson and Dayid Hannah, as sureties, and Eva W. Dexter, formerly Eva W. Walker, as principal; her present husband, W. W. Dexter, being- joined pro forma as a party, on two bonds, one being a super-sedeas bond and the other a replevy bond.

It was alleged that, in 1905, Dickey sued Eva W. Walker and George W. Walker, then her husband, from whom she has since been divorced, for certain lots in an addition to the city of Houston, and sequestered the property. That the defendants in that suit gave a replevy bond with Wilson and Hannah as sureties, binding themselves, among other things, to pay the value of the rents, if condemned so to do, and the property was released. That subsequent thereto the cause was tried and judgment rendered for Dickey for the title and possession of the land. An appeal was taken from that judgment to the Court of Civil Appeals at Galveston, and a supersedeas bond was executed with the defendants as principals and Wilson and Hannah as sureties, in which they bound themselves, among other things, to pay all damages awarded and the value of the rents and hire of the property, and the judgment was affirmed, and a writ of error was applied for and refused by the Supreme Court. It was further alleged that the premises had been occupied by the defendants in the original suit, after the execution of the replevy bond, for 21 months, and the occupants had paid no rents, and that the rents, with interest, amounted to $985. A jury was waived and the court rendered judgment against Mrs. Dexter and the sureties for $330 with interest from February 15, 1907, at the rate of 6 per cent, per annum, making a total of $375.40. Execution was directed, first, against the property of Mrs. Dexter, and then against the property of the sureties.

The findings of facts show that the allegations in the petition were substantially established by the evidence, and they are adopted by this court.

Judgment was not rendered in the original suit on either the replevy bond or the super-sedeas bond for the rents, and the contention is that an independent suit on the bonds, or either of them, cannot be maintained when George W. Walker, one of the principals on the bond, was not made a party to the suit. It was alleged and proved that George W. Walker was actually and notoriously insolvent, and under the provisions and terms of article 1204, Rev. St. 1895, the authority is given to sue the sureties without the necessity of suing the principal obli-gor. That statute applies to the surety upon any contract and there is no ground for the contention that the replevy and supersedeas bonds are not contracts within the purview of the statute. Neither of the authorities cited by plaintiffs in error is in point. In neither of the cases were the exceptions set forth in article 1204 shown to exist, and, of course, the general rule that a surety cannot be sued, unless his principal is joined with him, as formulated in article 3818, Rev. 'St., was applicable. The allegations and proof in this case bring it clearly within the scope of. article 1204, which permits sureties to be sued without joining the principal, when he is actually or notoriously insolvent. Bopp v. Hansford, 18 Tex. Civ. App. 340, 45 S. W. 745.

There is another contention to the effect that judgment for the rents not having been rendered in the original suit, an independent suit on the bonds cannot be maintained, which is without merit. The case of Fidelity Co. v. Tex. Land & Mortg. Co., 40 Tex. Civ. App. 489, 90 S. W. 197, is directly in point. The right to sue on statutory bonds in independent actions must necessarily follow from the right accorded to the beneficiary to recover in independent suits on bonds not statutory, on account of defects in them. Jacobs v. Daugherty, 78 Tex. 682, 15 S. W. 160; Mariany v. Lemaire, 83 S. W. 215.

The facts found by the trial judge indicate that the original suit was one of trespass to try title, and there was a prayer in the alternative for judgment on certain promissory notes and a foreclosure of the vendor’s lien. The notes were given by Walker and wife, and the land must have been community property. In the original suit, it was held by the Court of Civil Appeals that judgment could not be rendered against the wife for costs, clearly indicating that the land was not her separate property. Walker v. Dickey, 44 Tex. Civ. App. 110, 98 S. W. 658. It follows that Mrs. Dexter was not a proper party to the suit and that no judgment should have been rendered against her. Wanderlohr v. Bank, 102 Tex. 20, 108 S. W. 1154, 112 S. W. 1046. Mrs. Dexter not being a proper party, and Walker being notoriously insolvent, the judgment should have been against the sureties alone.

The judgment is reversed and the cause dismissed as to Eva W. Dexter and W. W. Dexter, and is affirmed as to William A. Wilson and David Hannah.  