Merrill v. Focht

172 Wis. 575 | Wis. | 1920

Owen, J.

It is contended in this court that the county court properly disallowed Palmer’s claim for lien on the United Agency stock, for two reasons: first, that there was no consideration for the assignment of July 10, 1913, by which Sprague assigned to Palmer the 450 shares of United Agency stock as additional collateral security for the $2,500 note executed November 15, 1912, and which was then held by Palmer; second,' that the judgment of the county court in the matter of the claim of Elizabeth Martin against the estate of Burr Sprague is res adjudicata upon the question here involved. We will treat these contentions in their order.

To the point that there was no consideration for the assignment by Sprague to Palmer of the United Agency stock July .10, 1913, respondent relies upon the provisions of sec. 1675 — 51, Stals., as it then existed, which provided that the “indorsement or. delivery of negotiable paper as collateral security for a pre-existing debt, without other consideration, and not in pursuance of an agreement at the time of delivery, by the maker, does not constitute value.” The application of that provision of the law to the transaction is not apparent. The property delivered as additional security for the pre-existing debt was not negotiable paper, hence does not come within the provision relied upon. The assignment of the United Agency stock was in writing and under seal. It is recited therein that it was given “for a good and valuable consideration to me in hand paid by Newton N. Palmer, the receipt whereof is hereby acknowledged.” This constitutes presumptive evidence of a sufficient consideration, even though the security of past indebtedness be no consideration. Sec. 4195, Stats.; John A. Tolman & Co. v. Infusina, 170 Wis. 433, 175 N. W. 916. There was no evidence in this case to rebut the presumption thus raised, and it must be held upon the record that the assignment was supported by a sufficient consideration.

The contention that the judgment of the county court in the matter of the claim of Elisabeth Martin' against the estate of Burr Sprague, deceased, is res adjudicata upon the rights of the claimant herein, cannot be sustained. The right of the present claimant to a lien upon the proceeds of the United Agency stock was not there in issue.. The only issue there under consideration was whether Elisabeth Martin was entitled to a lien upon the United Agency stock or its proceeds. Every creditor of the estate of Burr Sprague had an interest in the denial of the lien. It was proper for them tó appear and oppose its allowance. This Palmer did. If during the proceedings his attorney asserted, arguendo, that not only Elisabeth Martin was not entitled to a lien on the stock but that Palmer was, the court acquired no jurisdiction to determine the question of whether. Palmer had a lien on the stock. The judgment rendered upon that claim was conclusive only upon the issues there presented, which involved only the right of Elisabeth Martin to a lien or preference upon this stock. No judgment rendered upon that claim could affect the right of the present claimant to a judgment against the estate for the amount of his indebtedness or to a lien upon the property in controversy. The principles dictating this conclusion aré too fundamental to justify the citation of authority.

For a good and sufficient consideration Sprague, in his lifetime, assigned to Palmer the United Agency stock as collateral security for his indebtedness. Our attention is called to no act on .the part of Palmer by which his lien upon the stock for such security has been released. In fact we do not understand that it is so contended. His claim for.a lien is opposed rather on the ground that he never acquired any legal right to the security. It appearing that the stock was legally assigned to him and that such assignment- was supported by a sufficient consideration, nothing-remains to be considered. The count}'- court erred in disallowing the claim for a lien upon the proceeds of the sale of the United Agency stock as claimed.

The executrix of the estate made no appearance in this court, and Elisabeth Martin seems to be the principal, if not the sole, objector to the allowance of the lien. The appellant should be” allowed costs against Elisabeth Martin and no costs should be taxed against the estate.

By the Court. — Judgment reversed, and cause remanded to the county court with instructions to enter judgment allowing the claimant’s claim for a lien upon the proceeds of the United Agency stock. Costs to be taxed as indicated in the opinion.