Clinton National Bank v. Studemann

74 Iowa 104 | Iowa | 1888

Robinson, J.

1. sale: cieiivS7entsiwye' with notice. I. The first question we are required to determine is the validity of the sale to intervenor. The petition of intervention alleges an agreement of purchase, and an actual ¿Le]ivery 0f the property thereunder. The demurrer admits these allegations to be true. The agreement of purchase, and the delivery thereunder, constituted a valid and completed sale. It is true that, after the property was delivered, it was returned to defendant to be cared for, and driven to market on a subsequent day ; but it does not appear that defendant retained any interest in the cattle, or right to their possession, adverse to intervenor. He was under obligation to care for the cattle, and drive them to the place named. But these acts were required to complete his part of the bargain, and were for the benefit of the intervenor. The sheriff had notice of these facts, and notice to him at the time of^the levy was notice to the plaintiff. Therefore, the fact that defendant had actual possession of the cattle when the sheriff levied upon them is not prejudicial to intervenor, and he is entitled to the cattle or their proceeds, subject to whatever rights plaintiff may have acquired under the garnishment proceedings.

2. garnishmEé?ít: toepay debt”dstatute r4btsuof garmshee. II. It is insisted, on the part of appellee, that appellant has no interest in prosecuting this appeal, for the reason that the judgment ratifies the sale, and only requires him to pay the contract price. It is also claimed that the contract, so far as it requires intervenor to pay anything to Ingwersen Bros., cannot be enforced, for the reason that, being an agreement to pay the debt of another, it was nob in writing, and hence is within the statute of frauds. We do not think the position of appellee is well taken. The obligation of intervenor to pay the five hundred dollars was an original undertaking on his part, entered into for his own benefit. It was not only not within the statute of frauds, but was a contract which Ingwersen Bros, could have enforced by direct proceedings against intervenor (Johnson v. Knapp, 36 Iowa, 616, and cases therein cited; Morrison v. Hogue, 49 Iowa, 574); and it would be no defense to such proceedings that intervenor had paid the money into court' in obedience to a judgment to which Ingwersen Bros, were not parties. The intervenor did not object to the application for a receiver, nor to the sale by him of the property, but asked that he be permitted to retain of the purchase price the amount he had agreed to pay the creditors of defendant'. In other words intervenor asked that his liability as garnishee be limited'to the amount of his- indebtedness to defendant, and to that we think he was entitled.

3. appeal : for” demand court.er III. It is said the money is subject to the order of the court, and that appellant should apply for an order, for the relief to which he is entitled. But he has made application for' this relief once, and was denied. He is under no obligation to make a further attempt.

4. —: land oí ?ntoventí?>n: IT. Appellant insists that this is an equitable action. We do not understand upon what ground this claim is based. The proceeding of appellant is under section 8016 of the Code. There are no tacts wnicJi require relief winch a court of equity alone can give, and the case was not treated as in equity in the court below. We do not think the claim, of appellant in respect to this matter can be sustained.

For the error in sustaining the first part of the demurrer to the petition of intervention the case is

Reversed.