In the opinion filed in this case for the Court it is held, citing Jeffries v. Aaron, 120 N. C., 167: “There being no ground to sustain the defendant’s motion upon the allegation of mistake, surprise or excusable neglect, it should not be modified on the ground of irregularity; for, the court having jurisdiction-of the subject and the parties, there is a presumption in favor of its judgment, and the burden of overcoming this presumption is with the party seeking to set aside the judgment. . . . Although there was irregularity in entering the judgment, yet unless the Court can now see reasonably that the defendants had a good defense, or that they could now make a defense that would affect the judgment, why should it engage in the vain work of setting the judgment aside now, and then be called upon soon thereafter to render just such another between the same parties ?”
*183Tbe Court further held that “tbe final judgment was regularly entered as against Quakenbush on tbe note and mortgage, and for tbe possession of tbe property described in bis complaint, and for tbe return of wbicb tbe replevin bond was given by the defendant, with Garrett as bis surety.” It is further held: “Tbe contract of Garrett on tbe replevin bond was for tbe return of tbe team, or their value, and tbe final judgment against him should not be reopened and modified by a judgment of default and inquiry, but for tbe fact that be alleges that tbe value of tbe team, subject to prior mortgages, under wbicb they were seized and have been sold did not equal tbe amount of tbe judgment. It was error in tbe court to refuse to permit him to offer evidence to that effect, and for this reason be is entitled to have tbe judgment modified into one by default and inquiry, and evidence introduced to that effect.” It was therefore ordered that tbe judgment be modified as to tbe surety on tbe replevin bond in accordance with this bolding.
This plaintiff insists that this was an inadvertent error on tbe part of tbe court, in that it bolds that tbe surety on tbe replevin bond may offer as a defense that there were prior mortgages on tbe property, for tbe return of wbicb, or for tbe value of wbicb, if same could not be returned, be has bound himself by bis bond.
Tbe liability of tbe surety to tbe plaintiff in this action is fixed by tbe terms and conditions of bis bond. Tbe terms of a replevin bond are 'fixed by statute (C. S., 836), and tbe bond signed by Garrett in this action is in strict conformity with tbe statute. He bound himself unto tbe plaintiff in tbe sum of $1,000, that if tbe property then in tbe bands of tbe sheriff, who bad taken same from defendant Quakenbush, be returned to tbe defendant, “it shall be delivered to tbe plaintiff, with damages for its deterioration and detention, together with tbe costs of tbe action, if. such delivery be adjudged and can be bad, and if such delivery cannot for any cause be bad, that tbe plaintiff shall be paid such sum as may be recovered against tbe defendant for tbe value of tbe property at tbe time of tbe wrongful taking or detention, with interest thereon, as damages, for such taking and detention, together with tbe costs of tbe action.”
Tbe surety now insists that, as a defense to plaintiff’s demand for judgment on this bond, be can show that some person other than tbe plaintiff, not a party to tbe action, bad a right or title to the property superior to tbe plaintiff, or that be can show that tbe property cannot now be returned, because tbe same has been taken from tbe defendant by some other person under a title superior to that of tbe plaintiff. This defense is not available to tbe surety by reason of tbe terms of bis contract as set forth in tbe bond. It has been adjudged that tbe plaintiff is the owner of the property, and he is therefore entitled to delivery of *184the same, or if such delivery cannot for any cause be bad, that the plaintiff shall be paid the value of the property at the time it was delivered to the defendant by virtue of his replevin bond.
This Court has held, in Randolph v. McGowan, 174 N. C., 203, that the failure upon the part of a defendant to establish his title makes him a wrongdoer and, being such,'he is not permitted to set up the destruction of the property while wrongfully withheld from the plaintiff as a discharge of his obligation to return the goods or pay their value and damages. Nor can the defense be available to the surety that the property, for the return of which to the plaintiff upon its being adjudged that the plaintiff was entitled to delivery, belonged to third persons who were not parties to the action. 34 Cyc., 1594, and cases cited; 23 R. C. L., 906, sec. 67.
In Motor Co. v. Sands, 186 N. C., 732, this Court says: “In keeping with the general trend of authorities, it is the declared law of this jurisdiction that a plaintiff in replevin, in possession of the property under a replevin bond, as well as a defendant in replevin retaining possession of the property under a forthcoming bond, is liable, at all events, for the return of the property, if the action be decided against him; and the fact that his failure to maké return is caused by the act of God, or other circumstance beyond his control, is of no avail to relieve him of his obligation, nor is he discharged by a showing of a want of negligence on his part.”
So much of the order made by this Court upon the hearing at Spring Term, 1924, as directs that the judgment as to the defendant Garrett be modified into a judgment by default and inquiry, in order that the value of the team for which he is responsible, subject to the prior mortgages, shall be ascertained, is reversed. It is manifest that the said order was due to an inadvertence on the part of the court, and the judgment as to Garrett, the surety, as well as to Quakenbush, the principal, as originally entered in the court below, is affirmed.
It appears to be conceded that the horses and mules cannot now be delivered to the plaintiff. This action is remanded to the Superior Court of Moore County in order that an issue may be submitted to a jury substantially as follows: What was the value of the mules and horses replevied in this action at the time of the defendant’s replevin bond in this case, and the return of the mules and horses to the defendant on 27 December, 1921 ?
Petition allowed.