96 Ill. 389 | Ill. | 1880
delivered the opinion of the Court:
Plainly, this judgment must be reversed. Appellee shows no legal cause of action or right in this proceeding as against Dressor, and his pretended claim of right is such that the remedy adopted is entirely inappropriate. Dressor, by his contract, agreed, upon certain contingencies, which are not shown by this record to have happened, to place 160 acres of land (to be a part of a larger body of land, to be selected by him) so as to render it available in the payment of a note which was executed by George C. McCord, and by John McCord, who was a son-in-law of Dressor; that is to say, he was to pay John McCord’s share of the note. After this contract was made, (it seems to have been made in good faith,) it is not perceived by what right any other creditor of George C. McCord could claim to take this land or the proceeds that might arise from the disposition of the land, and apply it to his debt, when by the contract of Dressor and George C. McCord, it was to be applied to the payment of another debt of George C. McCord, for the purpose of relieving John McCord, the son-in-law of Dressor, from liability for the same debt. This contract was, in equity, a complete assignment by George C. McCord, of that cause of action, setting it apart for the purpose of paying and discharging the debt of George C. McCord, for which John McCord was also liable.
After such an assignment was made, it is not perceived how any other creditor could come in and claim to appropriate these assets to his debt and leave the liability on John McCord undischarged. The creditor can have no higher right against Dressor than had George C. McCord, and it is plain George C. McCord could not, without the consent of Dressor, have this property applied to the payment of any debt other than that for which John McCord was liable.
But were, this otherwise, and.had the creditors in this case, Byhiner and others, an equitable right to have this land selected and disposed of, and the proceeds applied in discharge of the debt of George C. McCord to them, the remedy for this is in a court of equity.
The interest in this property is not such assets as could be reached by a process of garnishment.
Judgment must be reversed and the case dismissed.
Judgment reversed.
