McGuire v. Wilkinson

72 Mo. 199 | Mo. | 1880

Napton, J.

The assignee of the plaintiff, McGuire, obtained a judgment against Joel Wilkinson for $424.28, in May, 1874. At that date there were four mortgages upon Joel Wilkinson’s land in Cape Girardeau county, which, with taxes and other expenses, amounted altogether to $3,470.30. The land was sold under these mortgages for $3,939.85, which left a balance of $469.55, subject to McGuire’s judgment, and the object of this garnishment was to compel Nathan Wilkinson to pay over this surplus to the judgment creditor. The defense is, that the land sold for only $3,000; that the additional $939.85, which the purchaser actually paid for it, was brought about by an agreement between him and Nathan Wilkinson and Joel Wilkinson that the excess over $3,000 should be retained by Nathan to save him harmless upon an indebtedness of Joel on which he, Nathan, was security, which indebtedness was in the form of notes given by Joel upon which Nathan was security and joint maker. It is not pretended that the plaintiff, who had a judgment, was at all privy to this arrangement, but the effect of it, it is insisted, was to destroy all liability to Joel Wilkinson on the part of Nathan for the surplus thus realized, and at all events, to reduce the claim from a lien on the land to a mere pecuniary obligation which ceased to be a lien, and could not, therefore, be reached by plaintiff’s judgment. The circuit court, it seems, decided otherwise, and thought the lien of the judgment subject to the mortgages could not in this way be evaded, and in this opinion we-concur. McGuire’s judgment was alien on the land, subject to the four mortgages. The plan pursued to evade this lien was to let.the purchaser take the land at the nominal price of $3,000, which would be insufficient to pay off the mortgages, but at the same time the real sum to be paid was about $4,000, which would be enough to pay off the mortgages and the judgment debt of McGuire. As Joel Wilkinson assented to this arrangement, it is urged that he could not claim the surplus as his, and, therefore, his creditor, McGuire, could not garnish Nathan Wilkinson, who, as the last mortgagee, received the money, and who had a right to retain it in order to secure him on the two notes on which he was security for Joel. The surplus was due to Joel Wilkinson, and, therefore, subject to garnishment. “ The surplus must be held subject to the same lien as the property was subject to from which it was derived,” (Huffard v. Gottberg, 54 Mo. 274,and was subject to garnishment in the hands of Nathan Wilkinson. Casebolt v. Donaldson, 67 Mo. 308. Judgment affirmed.

The other judges concur.