
    Winters v. Judd et al.
    
    
      (Supreme Court, General Term, Fifth Department.
    
    January 24,1891.)
    1. Indemnifying Bonds—Conditions.
    An indemnifying bond, given by an execution creditor to the sheriff, to whom the execution was directed, recited that whereas certain goods that appear to belong to the execution debtor are claimed by certain mortgagees, and was conditioned to indemnify the sheriff against all damage, suits, and executions that may at any time arise, or be brought against him for levying, etc., by virtue of the execution. The bond did not recite any claim by the execution debtor to an exemption as to the goods in question. Held, that the hand did not cover any liability of the sheriff for selling the property because it was exempt.
    2. Same—Evidence—Res Gesm.
    In an action against the sureties in such bond, a letter from the sheriff stating that “the parties holding the chattel mortgages say they will sue as soon as sale is made, ” which letter was shown to the sureties, is admissible as part of the res gestee.
    
    Appeal from judgment on report of referee.
    Action by Margaret C. Winters, as executrix, etc., against Chauncey Judd and another. Judgment was entered in Cattaraugus county on the report of the referee in favor of defendants, and plaintiff appeals.
    Argued before Dwight, P. J., and Macomber and Corlett, JJ.
    
      Frank Rumsey, for appellant. J. G. Record, for respondent.
   Corlett, J.

On the 9th day of December, 1878, an execution was issued in favor of one Henry W. Eddy against Sally Eddy to collect a judgment for $1,590.50, in pursuance of which a levy was made by direction of the judgment creditor. The property levied upon had been previously attached by the judgment creditor. The defendant in the judgment claimed, both at the time the property was attached and levy made, that certain articles of property covered by the levy, to-wit, a team of horses and a melodeon, were exempt from levy and sale. Francis Larrabee and Stephen Laing claimed liens upon the property by virtue of chattel mortgages. The sheriff, before he would sell, required a bond of indemnity, which was executed. The following is a copy: “Know all men by these presents, that we, Henry W. Eddy, as principal, and Chauncey W. Judd and Wallace Ward, as sureties, of New York, are held and firmly bound unto George L. Winters, sheriff of the county of Cattaraugus, in the sum of three thousand dollars, lawful money of the United States, to be paid to the said George L. Winters, or to his certain attorney, executor, administrators, or assigns; for which payment, well and truly to be made, we bind ourselves, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, dated the -day of December, one thousand eight hundred and seventy-eight.

“Whereas, the above-bounden Henry W. Eddy, in the supreme court of the state of Hew York, did obtain judgment against Sally Eddy for the sum of $1,590.50, damages and costs, whereupon execution has been issued^ directed, and delivered to the said George L. Winters, commanding him that of the goods and chattels of the said Sally Eddy he should cause to be made the damages and costs aforesaid; and whereas, certain goods and chattels that appear to belong to the said Sally Eddy are claimed by Francis Larrabee and others in the execution aforesaid: How, therefore, the condition of this obligation is such that if the above-bounden Henry W. Eddy shall well and truly save, keep, and bear harmless and indemnify the said George L. Winters, sheriff, and all and every person aiding and assisting him in the premises, of and from all harm, let, trouble, damage, costs, suits, actions, judgments, and executions that shall or may at anytime arise, come, or be brought against him, them, or any of them, as well for the levying and making sale under and by virtue of such execution of all or any goods and chattels which he or they may judge to belong to the said Francis Larrabee and others, as well as in entering any shop, store, building, or other premises for the taking of any such goods, chattels, then this obligation to be void, else to .remain in full force and virtue. .

Henry W. Eddy. [l. s." “Chattncey Judd. [l. s.= “Wallace Ward. [l. s.1”

After that, the sheriff sold the property levied on. Then Sally Eddy brought an action for the conversion of the team and melodeon, and recovered a judgment against the sheriff, on the ground that the property was exempt, which he paid. In February, 1885, an action was commenced by the sheriff on the bond, to recover the amount of such payment. He died, and the plaintiff was substituted in his place. Issue was joined, the action was referred, a trial was had, and the referee made a report dismissing the complaint. Judgment was entered upon the report, and the plaintiff appealed to this court. The referee wrote an opinion, which appears in the ease.

The central question on the trial was whether the bond could be construed as covering any liability of the sheriff for selling the property because it was exempt. It will be noticed that the recital in the bond, so far as material, is: “And whereas, certain goods and chattels that appear to belong .to said Sally Eddy are claimed by Francis Larrabee and others in the execution aforesaid. ” Then comes the condition of the bond, which in some respects is obscure, and seemingly meaningless. In Association v. Conkling, 90 N. Y. 116, the general rule was repeated that “ the liability of a surety is always strictissimi juris, and may not be extended by construction beyond his specific engagement. ” The judge delivering the opinion, on pages 120,121, says: “The recital in such bonds, undertaking to express the precise intent of the parties, controls the condition or obligation which follows, and does not allow it any operation more extensive than the recital, which is its key; and so it has been held in many cases.” Cases are then cited, and the judge proceeds: “In Pearsall v. Summersett, 4 Taunt. 593, it was held, as expressed in the headnote, that * the extent of the condition of an indemnity bond may be restricted by the recitals, though the words of the condition import a larger liability than the recitals contemplate.’” The judge, in support of this, cites other cases. The material portion of the recitals above quoted were written. In Griffiths v. Hardenbergh, 41 N. Y. 464, it was held that- surrounding and contemporaneous facts should be considered in construing a bond or written instrument. At the time the sureties signed the bond, a letter from the sheriff was shown them, which stated, among other things, that “the parties holding the chattel mortgages say they will sue as soon as sale is made.” So that the recitals in the bond, as well as the letter, were to the effect that the bond was required as indemnity against claims of persons holding chattel mortgages on the property. The recital is: “And whereas, certain goods and chattels which appear to belong to the said Sally Eddy are claimed by Francis Larrabee and others in the execution aforesaid.” It would be a forced construction to include the execution debtor in the words, “and others.” The words, on their face, clearly relate to persons other than the judgment debtor. The sheriff evidently had his mind upon the claims of those holding chattel mortgages or having liens; and when the bond was executed a recovery against the sheriff by the judgment debtor on account of exempt property does not appear to have been in the minds of the parties signing the instrument, or of the sheriff who took it. It was demanded and executed, evidently, to protect the sheriff against the claims of third persons.

The property of a judgment debtor is prima facie liable to levy and sale by virtue of an execution. When the debtor in the process relies -on exemption! the claim is an affirmative one. It must be proved. In the absence of proof showing exemption, all the debtor’s property is liable. There is certainly nothing in this bond, especially in the recitals, which would in any way indi-' cote that there was any fear or apprehension on the part of the sheriff that he would be proceeded against by the judgment debtor upon the claim that it was exempt. It is no answer to say that she insisted upon the exemption, both at the time the attachment was executed and the levy made. There is nothing to show that the sureties had any knowledge or information of any such claim on her part, and there is certainly nothing in the recitals in the bond apprising them of any such thing, but every reasonable inference is the exact reverse. It is true that in the body of the condition there are words which might be construed as including such a claim; but the fair construction of the whole instrument, including the recitals, is, and at the time must have been so understood by the sureties, that their obligation was for the purpose of protecting the sheriff against the claims of persons having liens on the property, other than the judgment debtor. It cannot be argued with any plausibility that the bond contains any “specific engagement” to indemnify the sheriff against a recovery by the judgment debtor because the property levied upon and sold was exempt. Nothing of the kind is suggested by the terms of the bond. The learned counsel for the appellant argues with much force and ability that it is possible to include exempt property within the bond. But such a construction requires great skill and ingenuity to impart to it plausibility. It is not the ordinary one which would be attached to the instrument. Under such circumstances it. should not be construed to extend, as against.sureties, so far as to include exempt property owned by the judgment debtor. The letter was properly admitted in evidence, together with the other circumstances proved at the time of the execution of the bond. They were all a part of the res gestee, and threw light upon the construction of the» instrument executed. The judgment must be affirmed. All concur.  