
    Greer v. Howard.
    A sheriff levied an execution upon the property of a debtor, who afterwards assigned for the benefit of creditors, and his assignee replevied the property levied upon from the sheriff, and gave bond in replevin with sureties as required yb law. Before the trial of the action of replevin the plaintiff therein, the assignee, died, and the action was revived in the name of his successor as assignee. Upon a trial of the action the sheriff recovered a judgment against the successor of the assignee for the value of the property taken in replevin.
    In an action by the plaintiffs in the execution under which the levy was made, against the sureties on the replevin bond, Held:
    
    1. That the action was properly revived in the name of the successor in the trust as assignee.
    2. That the sureties in the replevin bond are liable for the judgment recovered by the sheriff against the successor of the assignee.
    3. Where there has been no assignment of the bond or of the judgment in replevin, nor refusal or neglect by the sheriff to enforce the bond, an . action thereon can only be maintained by the sheriff.
    Error to the District Court of Montgomery County.
    The plaintiffs in error, Greer & King, on March 29th, 1878, recovered a judgment against D. Carroll & Son, in the superior court of Montgomery county, for the sum of $832, and $28 costs. They caused execution to be immediately issued on this judgment to the sheriff of the county, who levied upon the property of Carroll & Son. While the sheriff held the property under his levy, George M. Young, as assignee of Carroll & Son, under an assignment for the benefit of creditors, replevied the property from him and gave a bond in replevin as required by law, with John Howard and O. M. Gottschall as sureties thereon.
    Before the action in replevin came to trial, the plaintiff, George M. Young, the assignee, died, and the action was revived in the name of Thomas C. Roseberry, who was duly appointed as the successor of Young, the assignee. On the trial of the action of replevin the plaintiff, the assignee, failed, and'the sheriff recovered a judgment against him for the value of the property taken in replevin. The plaintiffs, Greer & King, in the judgment upon which the execution issued under which the property was taken by the sheriff, were not substituted for the sheriff in the suit in replevin. Nor did the sheriff assign to them the replevin bond or the judgment recovered in the action. Upon this state of fact, Greer & King brought their action upon the replevin bond against Howard and Gottschall and recovered judgment in-the common pleas, which judgment was reversed by the district court.
    The proceeding here is to reverse this judgment of the district court.
    
      Iddings & Iddings, for plaintiffs in error.
    I. By the proceeding in replevin, completed by the proper bond, the title passed absolutely to the property replevied, subject to no conditions. The bond took the place of the property. Smith v. McGregor, 10 Ohio St., 461.
    II. The doctrine of strict construction does not apply in the ascertainment of the contract of the surety. The bond, being statutory, must receive a reasonable construction, having in view the object to be attained, and the course of legal proceedings. Brandt on Suretyship, § 80; King v. Nichols, 16 Ohio St., 80; Helt v. Whittier, 31 Id., 475; Alber v. Froehlich, 39 Id., 245.
    III. Upon the death of George M. Young, the law required a successor in his trust. This successor was entitled to all the property in the hands of Young; and was a proper person to succeed to the suit upon a proper showing made. Revised Statutes of Ohio, §§ 5148, 6341; Phillips v. Ross, 36 Ohio St., 458.
    IY. If the sureties became sureties for the person who was the assignee, in his official capacity, they continue sureties for the person who, in the usual and regular course of proceedings, steps into his shoes, by act of law. And death, removal, etc., should be contemplated as probable occurrences, which will not change their responsibility. King v. Nichols, 16 Ohio St., 80; Hanna v. Petroleum Co., 23 Id., 622; State v. Rucker, 59 Missouri, 17; Boyd v. Gault, 3 Bush (Ky.), 644; Reusch v. Demas, 34 Mich., 95.
    This doctrine should apply more peculiarly to a replevin bond. After twenty-four hours from its date, it becomes the only security to the defendant. There is no provision for a new bond through all the varying accidents that may occur. In simple language, it stands for the property; the title to which has been permanently vested in the plaintiff.
    Suppose the bond to be one for George M. Young individually. There are two distinct provisions in the replevin bond — the first of which is that “ George M. Young, assignee of D. Carroll & Son, shall duly prosecute his action aforesaid.” This is an important provision. The plaintiff, securing possession and absolute title by the proceedings and bond, need never bring the case to trial. The trial is for the benefit of the defendant. Hence the clause. As to its importance and meaning see Job v. Harlan, 13 Ohio St., 486.
    The duties imposed are not merely negative duties, but active ones. If the obligation upon George M. Young was an individual obligation only, neither he nor his personal representative ever prosecuted the action; but let the matter die with him. It does not appear that his representative ever made an application to court to be installed as plaintiff, or performed any duty whatever, or attempted to perform any duty designated in the bond. The sureties are responsible for the failure of the representative of their principal to perform his duty. Peabody v. Ohio, 4 Ohio St., 387.
    It seems to us that even applying the strictest rules to the second clause of the bond, nevertheless the defendants are liable upon the whole bond.
    
      Young & Young, for defendants in error.
    I. The liability of sureties is limited to the exact letter or terms of their contract. They stand upon .the words of their bond, and if the words will not make them liable nothing can; their liability cannot be extended by implication —must receive a strict interpretation — and can not be extended beyond the fair scope of the terms. Wells on Replevin, §§ 429 and 430; Miller v. Stewart, 9 Wheat., 680; Lang v. Pike, 27 Ohio St., 498; McGovney v. State, 20 Ohio Rep., 93; State v. Medary, 17 Id., 565; State v. Corey, 16 Ohio St., 17; Myers v. Parker, 6 Id., 501; Hall v. Williamson, 9 Id., 17-23; Smith v. Huesman, 30 Id., 662; 2 Id., 2; 11 Maine, 69; 1 Cal., 390; 49 Cal., 304; 26 Mo., 150; 36 Ill., 306 ; 33 Pa. St., 183; 6 Heisk., 546.
    Now the defendants in error undertook and bound themselves only that said George M. Young should (1) duly prosecute said action and (2) pay all costs and damages which should be awarded against him.
    It is not claimed in plaintiff’s petition that he did not duly prosecute said action; indeed, it is averred that he -died during its pendency, in which case there can be no -breach of this condition. Wells on Replevin, § 418.
    Plaintiffs rest their whole case upon the second condition above stated, and claim that the failure to pay the judgment against Roseberry, referred to in their petition, is a breach of this condition.
    The sufficient answer is that defendants in error did not undertake that said Young should pay costs and damages which might be awarded against said Roseberry, or any successor of said Young in said assignment, but only such costs and damages as might be awarded against him (said Young) personally. It was neither in the letter nor scope of their obligation that they should be liable for the default of any other party, whether a successor in said trust or otherwise.
    They were securities for him; not for the trust, or his successor.
    It was the trust and confidence they had in him, and not in the assignment, which induced them to sign the bond. Richards v. Storer, 114 Mass., 101; Jackson v. White, 5 Allen, 322; Andre v. Fitzhugh, 18 Mich., 93; 7 Blackf., 238; 2 Sneed, 154; 2 Pa. St., 345.
    The obligation for which the defendants in error became security was a personal one — that said Young (personally) should pay — and that he should pay such costs and damages as should be awarded against him personally.
    Now, if sureties are bound only by the letter of their contract, and the same can not be extended by implication, it is impossible to see how this language can be so construed as to bind said sureties for anything except the personal default of said Young, or the default of his personal representatives. There is nothing in the letter of the bond to bind them for the default of his successor in the trust; and to extend their liability thus far, by implication even, seems to us not warranted by any rule of construction.
    The words, “ assignee of D. Carroll & Son,” were only descriptive of the person. The bond does not recite that George M. Young, “as assignee of D. Carroll & Son,” caused an order to issue, &c., but that George M. Young (assignee of D. Carroll & Son) caused such order to issue.
    If said Young had lived and failed in the action, the judgment would have been against him personally, and the execution would have issued against his goods and chattels, lands and tenements, and not against the trust estate in his hands. Lowe v. Lowry, 4 Ohio Rep., 77.
    The obligations resting upon him with respect to the replevied property, or its proceeds, in Ms hands at the time of his death, were, by law, cast upon his personal representative. Peabody Potter v. Ohio, 4 Ohio St., 387-393.
    By § 6341, Revised Statutes, such legal representative is required to settle his account as such assignee, and pay over to his successor all moneys due from him to the trust.
    II. There was no privity of contract between defendants and plaintiffs, and Beebe was the only party who could sue on the bond.
    When as sheriff, Beebe levied on sufficient goods, that was a satisfaction of plaintiffs’ judgment. By virtue of the levy he acquired a qualified title to or ownership in the goods, and was responsible to plaintiffs to make the money on their execution; and when the goods were replevied, it was his business to defend, unless upon his application or that of said Greer & King, they were substituted as defendants, which was not done in this case.
    No assignment of this replevin bond to said plaintiffs in error is averred, and we know of no statute which authorizes them to sue upon it. They must look to the sheriff, who alone can sue upon ^ the bond, or follow the property when taken from him.
   McCauley, J.

If the revivor of the action in the name of Roseberry, the successor of Young as assignee of Carroll & Son, was proper, the sureties in the replevin bond became liable for the amount of the judgment recovered therein against the plaintiff.

It is argued, however, that the action should have been revived in the name of the legal representative of Young, the first assignee, and that the revivor in the name of Rose-berry beingi wrong, a judgment against him does not bind the sureties of Young, the original plaintiff.

The principal argument in support of this claim, is that section 6341, of the Revised Statutes, requires,' on the death of an assignee or trustee, that Ms legal representative sh'all file and settle his accounts, and immediately after such settlement shall pay over to his successor all moneys found due from him to the trust. This provision does not, however, require the legal representative to take the place of the assignee in pending actions. Who shall take his place in such actions, is to be determined by the statutes providing for the revivor of actions, rather than by the statutes defining the duties of legal representatives. Where a person is a party to an action in a representative capacity, in case of his death or where his powers as a personal representative cease, the action should be revived in the name of his successor. Revised Statute, section 5148. Upon the death of an administrator the' duty is enjoined upon his legal representative to settle his account and turn over all assets of the estate in his hands to his successor, as in the case of an assignee or trustee. But it would not be claimed that on the death of an administrator a pending action by or against him should be revived in the name of his legal representative — his administrator. There is nothing peculiar to an action of replevin requiring the revivor to be different from that of actions generally. The revivor was therefore properly made. It results from this that the judgment was one for which the sureties on the replevin bond were liable.

The action on the bond, however, was brought by the plaintiffs in the execution under which the sheriff levied on the property, without alleging an assignment of the bond to them by the sheriff, or an assignment to them of the judgment in replevin, and without alleging any reason why they should bring the action, such as the refusal or neglect of the sheriff to enforce the bond or to assign it or the judgment to them. They might clearly maintain the action if the bond had been assigned to them or if the judgment had been assigned, which would have effected an assignment of the bond as an incident to it. Or if the sheriff had refused or neglected to assign either the judgment or the bond, or to enforce the bond, in the latter case making the sheriff a party. This would not be their only remedy, but this one they would clearly have under the circumstances supposed. The plaintiffs in the common pleas failed to set forth a state of fact sufficient to entitle them to a judgment on the bond. Their petition was demurred to and the demurrer overruled. The district court reversed the judgment of the common pleas for the error of that court in overruling the demurrer. The district court in this reversal was clearly right.

Judgment affirmed.  