| Neb. | Apr 15, 1878
This is a foreclosure case,fand is brought into this court upon appeal. The note and mortgage in the case were executed by defendant William Nesbitt to one Samuel Bennett. The note became due on the tenth day of March, 1872. In 1872 and 1873 the defendant Felicia A. Holmes recovered judgments against Samuel Bennett and J. F. Bennett, and on the third of July, 1874, by proper process, she attached the debt due Samuel on the above note and mortgage, and summoned defendant Nesbitt as garnishee. On the third of August, 1874, defendant Nesbitt filed his answer to the garnishment, and admitted there were about seventeen hundred dollars due Samuel Bennett on the note and mortgage, which had then been due about two years. On the sixth of October, 1874, at a regular term of the district court it was “ordered by the court that the said William Nesbitt do pay to the said ” Felicia A. Holmes the sum of $945.57, being the amount remaining unpaid on her judgment against Samuel Bennett. And on the seventeenth of November, 1874, Samuel Bennett assigned the note and mortgage to the plaintiff, Thomas J. Campbell.
The plaintiff testified, that in the last of October, 1874, he and Daniel Bennett, son of Samuel Bennett, went to see Nesbitt; that he then “asked him if that note and mortgage were all right, and he said it is all right, go ahead; that he was looking to have $800 in a few days from Illinois — may be $1,000, and he would get it all and would pay me.” This conversation is admitted by Nesbitt in his testimony; but he testifies further, that at the time of the October term, 1874, of the district court, and for some time, he was in Illinois, and that shortly after his return home, in that month, the Bennetts informed him, in his precinct, that nothing was done in the proceedings against him as gar
In regard to estoppels en pais, it is said that from the manner in which a party must avail himself of them, it is obvious that there can be no fixed and settled rules of general application to regulate them, as in technical estoppels; that in many and probably most instances, whether the act or admission shall operate by way of estoppel or not, must depend upon the circumstances of each case. “ The doctrine .of estoppel en pais is founded upon principles of equity and justice, and is only applied to conclude a party by acts or admissions, intended to influence the conduct of another, when in good conscience and honest dealings he ought not to be permitted to gainsay them.” Wilcox v. Howell, 44 N. Y., 402; 8 Ward, 484; 6 Adolph & Ellis, 469.
Now, from the circumstances under which the declarations were made by Nesbitt in the conversation with plaintiff as above mentioned, it seems clear that what he said can only referred to an honest and proper motive, and not to any bad faith, or intention to influence the conduct of the plaintiff by willful misrepresentations. But as Nesbitt has not paid the sum attached in his hands, he has no defense to the payment of this portion of the note and mortgage debt; and there
There is, however, no difficulty in this respect, for by the attachment there was in legal effect a seizure of the note and mortgage belonging to Samuel Bennett to the extent due from him to Holmes, the attaching creditor; and, in law, this seizure is regarded as an assignment of so much of the note and mortgage debt to the attaching creditor, Holmes; and gives to her the same right to enforce the payment of the money by the garnishee that the debtor, Bennett, previously had. And the attaching creditor cannot be deprived of this vested right acquired by her attachment, except by a person who had previously acquired a valid right to the property thus attached. Rushton v. Rowe, 64 Pa. St., 65. Board of Education v. Scoville, 13 Kan., 32. Edgarton et al. v. Hanna et al., 11 Ohio St., 323. Giddings v. Coleman, 12 N. H., 153. Therefore, F. A. Holmes is entitled to be paid out of the note and mortgage debt the sum of $945.51, with interest thereon from October 6 th, 1874, and to a decree for that amount, she having, by virtue of the proceedings in garnishment, become the owner of that amount of the note and mortgage debt.
The finding must be, first for defendant Holmes for $945.51, with interest thereon from’ October 6th, 1874, amounting, with principal and interest, to the sum of $1,276.43; and second, in favor of plaintiff for the residue of the note and mortgage debt with interest thereon. Decree and order of sale of premises
Accordingly.