90 Ill. 440 | Ill. | 1878
delivered the opinion of the Court:
As we understand the facts presented by the record, there is but one question to be determined, and that is, whether the money which had been paid by Hinman to Cooper and that which Hinman had paid to Muehlke & Uhlich belonged to Hinman when the bill was filed, or was the money owned by other parties. If Hinman did not own the money, then it is clear it could not be reached by his judgment creditors by bill or otherwise.
We will first consider the point in regard to the $4000 which had been paid to Cooper. The three parties who sold these lands have been ready and willing to convey at any time since the sale, upon receiving the purchase money provided for in the contracts. It does not appear, from the record, that they have been in default in any respect whatever. The $4000 paid to Cooper he was directed to pay ov.er to the three vendors on the contract; he retained $350 as a repayment of a like amount he had advanced for Hinman on the contract when the purchase was made; $1850 he retained under a contract with the vendors to pay him that amount as commissions for selling the lands for them, which, as appears from the written contracts, was to he retained out of the first moneys received.
It is true Cooper was Hinman’s agent, but Hinman knew that Cooper’s commissions were to be paid by the vendors out of the first money received, and he gave his full assent to the arrangement. So far, then, as $2200 of the $4000 is concerned, it was actually paid over to the vendors on the contract, and there can be no doubt upon the question that Hinman had no interest in or claim to the money. As to the remaining $1800 it was proven that Cooper had purchased for Hinman another tract of land, and that Hinman had agreed to pay him as commissions the sum of $1800.
We do not hold, in this case, that as against Peters, Frenz and Ganzer, Cooper has the right to hold this money, but as against the creditors who filed this bill, he has a clear right to hold it.
The question assumes this form: Hinman was indebted to Cooper in the sum of $1800. Cooper comes into the possession of that amount of money belonging to Hinman. If Hinman should sue for the money, Cooper would have the right to claim an off-set to the full amount Hinman owed him, a,ud thus the debt would be extinguished. The creditor’s bill can only be sustained on the ground that Cooper had money or property in his hands belonging to Hinman or was indebted to Hinman when this bill was filed. Neither of these things existed, and it follows, that, as to Cooper, the bill could not be sustained.
In regard to the $7900 in the hands of Muehlke & Uhlich, we perceive no ground upon which it could be reached by a creditor’s bill. The money was paid by Hinman to these parties, as agents of the vendors, to be applied upon the contract, and the only reason why it had not been paid over to the vendors was because Hinman had agreed to pay enough more to discharge the first and second payments, and the money was left by the vendors in the hands of their agents until that might Be accomplished. That the money, when paid into the hands of these parties, was received as a payment on the land contracts, there can be no doubt. So long as the vendors were ready and willing to perform the contract, we are aware of no principle under which Hinman, the vendee, could recover money paid on the contract, and as the contracts expressly provided in case Hinman failed or refused to make payments according to the terms and conditions of the contracts, such money as had been paid should be forfeited to the vendors, they had the right to hold all payments which had been made, under that provision of.'the contract.
We do not understand that the judgment creditors of Hinman had any greater or superior right to the money than Hinman himself. A creditor by filing a creditor’s bill merely acquires a lien upon the assets of the debtor existing when the bill is filed, and if such assets consist of accounts due or choses in action, if the debtor himself could not maintain an action for a recovery of;-the same, we are aware of no principle upon which a judgment creditor could maintain a bill. Browning v. Bettis, 8 Paige, 568, although not directly in point, seems to establish the rule that a creditor’s bill will not lie to reach assets which the creditor could not maintain an action in his own name to recover.
As the testimony relied upon by complainants was not sufficient to authorize a decree in.their favor, the decree of the court dismissing the bill was right, and it will be affirmed.
Decree affirmed.
