131 Ky. 751 | Ky. Ct. App. | 1908
Lead Opinion
Opinion of the Court by
This is the second appeal of this case.' The opinion on the former appeal will he found in 89 S. W. 496, 28 Ky. Law Rep. 386. In 1889 John Brackett sold to Vincent Boreing and M. J..Moss his land. Boreing,
First. It appears that Brackett’s administrator simply made Moss a party defendant to the action. Nowhere in the record did Brackett or his administrator pray for a personal judgment against Moss for the land sold by Brackett to Boreing. Under these circumstances Brackett’s administrator was not entitled to a personal judgment against Moss, and the lower court did not err in so holding.
Second. Brackett’s administrator contends that Boreing’s administrators are not entitled to credit for the Hogan and Dink Miller and P. Hendrickson judgments upon the following grounds: (a) Boreing was indebted to Brackett, and after the service of the attachment by the attaching creditors on Boreing the money of Brackett was tied up in Boreing’s hands and was then held by Boreing as trustee for Brackett,
(a) In support of the first proposition counsel for Brackett’s administrator cite several authorities; but an examination of these authorities shows that they do not go to the extent of holding that a debtor who is garnisheed thereby becomes a trustee for his creditor whose funds are attached. On the other hand, the authorities in certain jurisdictions hold that the garnishee, by virtue of the attachment, becomes the trustee merely of the attaching creditors. Perkins v. Guy, 2 Mont. 15; Royer et al. v. Fleming et al., 58 Mo. 438. Manifestly, unless there is a contract to that effect, a debtor is never a trustee for his creditor. Nor do we see how the fact that the funds in the debtor’s hands are attached can at all change the relation which the debtor sustains to his creditor. The law is well settled that a debtor may purchase debts due from his creditor to others at less than their value, and demand a settlement for the full amount of the debts so purchased (Young v. Miller, 7 B. Mon. 540; Otwell v. Cook, 9 B. Mon. 357; McBrayer v. Dean, etc., 100 Ky. 398, 18 Ky. L. R. 847, 38 S. W. 508); and we fail to see any reason why this rule should be changed merely because the creditor from whom such claims has been purchased has also filed suit and obtained an attachment against the debtor. "We are therefore of the opinion that the attachments against Boreing by the judgment creditors of Brackett did not make Boreing a trustee for Brackett so as to require that he
(b) As to whether or not Boreing acted as the agent of Brackett in the purchase of the Hogan and Dink Miller and Hendrickson judgments, the evidence is about as follows: Boreing swears positively that he had no- agreement or understanding with Brackett whereby he was to purchase such judgments as the agent of Brackett-. Moss, who made the purchases for Boreing, swears that they Were purchased for Boreing, and not for Brackett. On the other hand, Brackett swears that Boreing agreed with him to purchase the judgments in question for his (Brackett’s) benefit. There are also certain letters from1 Boreing and Moss to Brackett. Moss, in one of his letters, advises Brackett to settle with Hendrickson. Boreing also wrote to Brackett that Hendrickson was anxious to settle, and asked Brackett what he (Boreing) should do. Brackett’s reputation for truth is discredited by several witnesses. The letters of Boreing-and Moss to him tend somewhat to confirm his statements. It does not appear, however, in the record that Brackett ever acted upon the suggestion of Moss, or that Moss acted for Brackett in making the settlements with the Millers and Hendrickson. Nor does it appear that after the receipt of the letter from Boreing, Brackett, acted upon the suggestion therein contained and directed Boreing what to do. On the contrary, it appears, that Brackett thereafter effected-, or attempted to effect, a compromise with Hendrickson. In this attempted settlement he acted upon his own initiative. He did not, nor did he pretend to, act through the intervention of Boreing as his agent or trustee. We must therefore conclude that he decided to ignore Boreing’s proposition, and to act for himself with
Brackett’s administrator contends that the evidence of Boreing and Moss is incompetent, for the reason that both Brackett and' Hendrickson were dead at the time this testimony was given. It does appear feat at the time a portion of their testimony was offered Brackett and Hendrickson were both dead. "While Brackett’s administrator filed exceptions to certain answers of Boreing and Moss, it does not appear that these exceptions were passed upon by the trial court, and they will therefore be deemed to have been waived. Lewis v. Wright, etc., 3 Bush 311; Patterson, etc., v. Hansel, etc., 4 Bush 654; Hon v. Harned, 38 S. W. 688, 18 Ky. Law Rep. 864. With the evidence of Boreing and Moss upon the one side and the evidence of Brackett and the letters to Brackett from Boreing and Moss on the other, with nothing to show that he (Brackett) ever acted upon the suggestions contained in the letters, we are unable to say that the conclusion of the chancellor that Boreing acted for himself in purchasing the judgments in question is erroneous. It appears, however, according to the testimony of Moss, that Boreing paid $100 for the Hendrickson judgment, and also agreed to pay the fee of Weller and Hays. In the year 1903 judgment was entered directing Boreing to pay the fee of Weller and Hays, and that he be given credit for the amount so paid as against Brackett. Whether this judgment was entered because of the agreement on behalf of Boreing to pay the fee of Weller and Hays, or whether it resulted alone from the fact that Weller and Hays had- a lien upon the judgments in question for the amount of their fee, does not appear. In either event the amount so directed to be paid was in effect a part
Third. The assignment of the Hendrickson judgment by Hendrickson to Boreing appears to have been made on -August 8, 1898. Hannah Hendrickson, as administratrix of P. Hendrickson, filed a settlement alleged to have been made between Hendrickson and Brackett, by the terms of which it was agreed that Hendrickson should be paid the sum of $250. She, therefore, claims the amount going to her husband under that settlement. It appears, however, that the settlement in question was made on August 17, 1898, about nine days after the assignment previously made by her husband' to Boreing. The evidence as to the exact time when the assignment from Hendrickson to Boreing was made, and the evidence as to whether any such settlement was ever affected between Brackett and Hendrickson, are so vague and uncertain as to leave the mind in doubt, and for this reason the judgment of the chancellor dismissing the claim of Hannah Hendrickson will not be disturbed. Burt & Brabb Lumber Co. v. Bailey, 60 S. W. 485, 22
Fourth. The last question to be determined concerns the claim of the assignee, Cumberland Valley Bank. The bank contends that it has a lien on the money owing Brackett by Boreing for the satisfaction of its debt against Hendrickson, and that this lien is superior to the claim of Boreing arising out of his purchase of the Hendrickson judgments. It appears that the bank’s action was filed on September 10, 1897, after it had procured judgments and! a return of “no property found’’’ against P. Hendrickson. This action was instituted prior to the time that Boreing purchased the Hendrickson judgments. At the time of the institution of this suit Hendrickson had obtained judgments against Brackett, and attachments had been issued against Boreing. These attachments had been sustained. The original petition filed by the bank’s assignee alleged that “he is informed, believes, and charges it to be true that defendant V. Boreing had in his hands considerable money which is owing to one John Brackett, but had been attached by and will be and is due and owing to defendant P. Hendrickson.” To this suit Boreing and Hendrickson were both made parties. Thereafter an amended petition was filed making Brackett a party defendant, and Brackett entered his appearance. Between the filing of the original petition and the amended petition Boreing bought the judgments in question. The trial court dismissed the claim of the bank’s assignee on the ground that Brackett, who was a necessary party, had not been made a party to the action prior to the time that Boreing bought the judgments, and that Boreing was in no sense the debtor of Hendrickson.
This court has held that the above section was intended to enable the creditor to subject to the payment of his claim any money, choses in action, equitable or legal interest, and all other property to which the debtor is entitled; that the statute is remedial and should be liberally construed, with a view to promote its object, which evidently was to enable a creditor, after a return of “no property found,” to reach by this kind of proceeding all property of the judgment defendant. Merriwether v. Bell, etc., 58 S. W. 987, 22 Ky. Law Rep. 844; Farmers’ Bank of Kentucky v. Morris, etc., 79 Ky. 157. In this case Boreing was indebted to Brackett, Hendrickson had attached the money due from Boreing to Brackett in Boreing’s hands, the attachment had been sustained, and so much of the money due Brackett by Boreing as equaled the Hendrickson judgments was then due, not to Brackett, but to Hendrickson, vahóse attachment had been sustained. At this time
Por the foregoing reasons, the judgment as to Hendrickson’s administratrix is affirmed, and the-judgment as to Brackett’s administrator and the assignee of the Cumberland Valley Bank is reversed, and cause remanded, with directions to the trial court to enter judgment ini conformity with this opinion.
Rehearing
On Rehearing.
On August 8, 1898, P. Hendrickson, it is claimed, assigned his judgments against Brackett to Vincent
It appears that no response was filed by Boreing to Brackett’s administrator’s reply to Boreing’s answer to Hannah Hendrickson’s petition. In view of the fact that it was an unusual procedure in pleading, we are of the opinion that Boreing’s administrators should' not be precluded by the allegations of the reply. Upon the return of the case these allega
For the reasons given, that portion of the opinion affirming the judgment as to Hendrickson’s executrix is withdrawn, and the judgment as to her is also reversed, and this cause remanded for further proceedings consistent with this opinion.