Walter H. Hanson and F.C. Keane, for Appellants. A supersedeas or stay bond given under the provisions of section 11-205, I. C. A., is not penal in nature and recovery can be had thereon for actual damages only. (Sec. 11-205, I. C. A.; United States Film Co. v. United States Fidelity Guaranty Co., 44 Cal.App. 227, 186 P. 364; Northwestern Terra Cotta Co. v. Caldwell, 234 Fed. 491, 148 C.C.A. 257; Stuart v. Abbey, 62 Misc. 84, 116 N.Y. Supp. 259.) Where the answer is sufficient to state a defense a demurrer thereto should be overruled.
Loss must be actually sustained before recovery. (9 C. J. 129; Dart v. Southwestern Bldg. L. Assn., 99 Ga. 794, 27 S.E. 171; Stewart v. Abbey, 62 Misc. Rep. 84, 116 N.Y. Supp. 259; Scott v. Phillips, 140 Pa. St. 51, 21 Atl. 241; City of Aberdeen v. Honey, 8 Wn. 251, 35 P. 1097; City v. Brett, 193 N.Y. 276, 86 N.E. 6; Massey v. Schott, 16 Fed. Cas. 1073, 1 Pet. C. C. 132, 262; Elliott on Contracts, sec. 2120; Sedgwick on Damages, 9th ed., secs. 96, 675; Sutherland on Damages, 3d ed., sec. 75; Williston on Contracts, sec. 774; Turck v. Marshall Silver Min. Co., 8 Colo. 113, 5 P. 838; Keck v. Bieber, 148 Pa. St. 645, 33 Am. St. 846, 24 Atl. 170.) Plaintiff has not been called upon to pay warrants and the action is premature.
In some of the cases which arose in this state out of the transfer of property in consideration of the grantee's promise to support the grantor for life the rights and interests of the latter were protected by a provision, either in the deed or by a separate instrument, creating a trust for the benefit of the grantor, or providing that the support should be a lien upon the property conveyed, or where the deed was silent upon the subject by the execution of a mortgage upon the property. McArthur v. Gordon, 126 N.Y. 597; Empie v. Empie, 35 A.D. 51; Stuart v. Abbey, 62 Misc. 84; Hutchins v. Van Vechten, 140 N.Y. 115. Mention of this is made for the purpose of showing that methods have been devised to protect the rights and interests of such a grantor. In the present case none of the methods above indicated nor any others were used by the defendant to safeguard the plaintiff's interests, and he gave no security for the faithful performance of his personal obligation to support the plaintiff.