Ulrich v. Ulrich

14 D.C. 290 | D.C. | 1883

Mr. Justice James

delivered the opinion of the court.

On the 29th day of August, 1879, the defendant Charles Ulrich took steps for effecting a loan from the Washington Building Association. The papers were in the usual form, that is to say, embraced a bond which was secured by a deed of trust. The bond was in the following words:

“Washington Building and Savings Association No. 4.

“Know all men by these presents, that I, Chas. Otto Ulrich, of the city of Washington, in the District of Columbia, am held and firmly bound unto Lorenz Kissner, treasurer of the Washington Building and Savings Association No 4, of the city of Washington, in the just and full sum of one thousand dollars, current money of the United States, to be paid unto the said Lorenz Kissner, treasurer as aforesaid, or to his successor in office, for which payment, well and truly to be made in the manner following, I bind myself, my heirs, executors and administrators. Sealed with my seal, and dated this twenty-ninth day of August, one thousand eight hundred and seventy-nine.

“Whereas, the said Chas. Otto Ulrich, a stockholder to the extent of five shares in the said association, has, by Virtue of and in accordance with the provisions of the constitution of the said association, and the obligation attached thereto, received from the said association the sum of one thousand dollars.

“Now, if the said Chas. Otto Ulrich, or his heirs, executors or administrators, shall well and truly pay or cause to be paid unto the said Lorenz Kissner, treasurer as aforesaid, or to his successor in office, the sum of two dollars on each of his shares of stock held by him, on which money has been advanced to him, monthly and every month, commencing from the date hereof and continue to pay the same on the second Monday of each and every month thereafter, and also all fines and forfeitures which may be imposed upon or incurred by the said Chas. Otto Ulrich by virtue of the provisions of the said constitution, until the close of the said association, or return of the money advanced to him, then this obligation to be void, or else to remain in full force and virtue in law.

“C. Otto Ulrich.”

The condition of this bond, which, as has been stated, was secured by a deed of trust, was to pay two dollars a month on each share of stock held by Ulrich. Afterwards, on the 19th of January, 1882, the plaintiff, Louisa Ulrich, filed her petition for divorce, setting forth that the defendant, Charles Ulrich, was the owner oí a certain lot in Washington, and alleging that it was all the property he owned, except a small amount of household furniture, and asking, first, a divorce and then alimony, praying meantime for alimony pendente lite.

It appears, that before the filing of the bill the building association had, as a matter of fact, loaned to Charles Ulrich not $214, but $1,000, and that he was, asa matter of fact, the owner of two shares, not of five, and that the $214 were loaned upon these two shares. After the filing of the petition for divorce and for alimony, setting forth that this w,as the only real estate that the defendant possessed, Ulrich purchased other shares, having first surrendered one of his two, and then he afterwards purchased four other shares, and upon these shares the association made another advance to him.

The questions are, first, whether the lending of the $214 on the two shares and the subsequent advances on the four shares were one transaction, and intended to be so by the instruments executed. And, next, if they were separate and independent transactions, whether the petition for divorce and alimony setting forth that this was the only property which the defendant owned, was such a Us pendens as to charge all persons purchasing this real estate, or loaning money upon it, with notice that the complainant was seeking to subject it to her alimony.

We are of opinion that the two transactions were entirely independent. By the constitution of this association all loans were made upon the stock and secured by real estate. The repayment of the loan was regulated by the amount of stock which the stockholder owned. If this repayment was to be accomplished in the manner usual with these associations, namely, by the payment of so much each month iipon the stock, then the measure of payment was ascertained and the fact established that the loan had distinct relation to the stock that the party owned at the time. So this first loan of $214, payable by paying monthly two dollars on each of two shares of stock, had distinct reference to the two shares which Ulrich owned. He did not, at that time, have more than these two shares. So that if he should wish to borrow more money he would have to acquire other shares, thus making any further loan, a loan made in respect of those shares yet to be acquired.

It was claimed, however, that this bond was. prospective ; that whatever loans the association might yet make were to be covered by it. There is no doubt that the bonds given to these building associations are usually framed in that way, but this bond is not.' It sets forth an existing debt, but misstates the amount, so that on. the face of the bond it would appear as if Ulrich had received the thousand dollars. The recitals in these bonds, however, are not binding. We can look into the real facts of the case, as we have done, and we find that Ulrich had not received any such sum, and that the bond has no reference on its face to any future transaction.

If, then, this petition for the allowance of alimony can be treated as a suit relating to this property, it would follow that the building association had no right to enter into new and independent transactions, and make a new loan upon the security of it in disregard of the pending suit brought to subject that property to the payment of alimony. It is claimed that a suit for alimony, although it described this property, was only a suit in personam. If it were so, of course the doctrine of Us pendens would be inapplicable.

The case of Daniel vs. Hodges, 15 Reporter, 534, decided by the Supreme Court of North Carolina, was a decision upon a similar question. In that case the petitioner set forth that the property described was the only property that the defendant possessed, and the court held that it was necessarily a suit to subject that property to her alimony, and might be pleaded as Us pendens, so that any transactions by strangers relating to that property were made with full notice of the suit pending in relation to it, and must be postponed to the rights' acquired thereunder.

We have carefully'considered this North Carolina case, because we understand it to have been the only one in point which counsel were able to find, and we are of opinion that the reasons applicable to that case as a Us pendens apply here fully. The complainant’s suit, besides being a suit for divorce, was a suit to subject this very property to her alimony. It could not have referred to any other property, because she stated that this was all the property the defendant had. We must, therefore, regard this suit as Us pendens in respect of this property.

The case then is, that after $214 had been loaned to the defendant Ulrich upon this property, the complainant brought a suit for divorce and alimony, and prayed that this property should be subjected to that claim. With notice of that suit, the building association proceeded to lend Ulrich more money, upon the security of the property. Two days before the new loan was made, the association received from Ulrich $160, while there was due to it only $52 and some cents of the original loan. So that before the association made the new loan, the old one had been extinguished, and an over payment of $108 made.

So far, therefore, as the complainant was concerned, this bond which gave a prior lien for an existing debt, and only for an existing debt, had performed its function, and any decree that might afterwards be made, allowing her alimony, would give her a first lien upon the property. There was such a decree fixing her alimony at $25 a month. The bond and the deed of trust no longer interposed any lien ahead of her. So that so far as she was concerned (but only so far as she was concerned), they were satisfied.

But as between Ulrich and the building association, we are of opinion that although the thousand dollars had not yet been advanced, but only $214 of it, yet it it was understood that the $214 was a part of the thousand dollars loan, and Ulrich accepted it as a part, the whole loan would stand secured by this bond and the deed of trust, so far as he was competent to make it, and continued to support a lien on this property as against him. The result is that the complainant has a prior lien for her alimony, and after that comes the lien of the building association. The alimony is itself subject to the control of the court, to be reduced and possibly increased. Her lien, therefore, is for her alimony —not for $25 a month — but for her alimony, which is now $25 a month, and the lien of the association on this property for their loan, is postponed to this claim.

The decree of the court below is reversed, and counsel will prepare a decree in accordance with this opinion.^*

* Ulrich vs. Ulrich. — The'following was the decree of the General Terra in this case in accordance with the above opinion;

This cause came on to be heard on the record and proofs, in the General Term, on plaintiff’s appeal from decree of the Special Term, and was argued by counsel. Whereupon, upon due consideration thereof, it is this 15th day of -November, A. D. 1883, adjudged, ordered and decreed as follows :

1st. That the decree of the Special Term of April 9, 1883, affirming the auditor’s report and dismissing the supplemental bill with costs, be and the same is hereby reversed.

2d. That the bond and deed of trust dated August 29,1879, mentioned and set forth in the supplemental bill, do not constitute security for future advances; and the original indebtedness of $214 thereunder of defendant Ulrich to the Building Association was fully paid and diieharged as to the plaintiff March 21, 1882.

3d. That the original bill for divorce and alimony filed January 19, 1882, was a Its paid ms with reference to the particular piece of real estate described in the pleadings, and the final decree of the Special Term of June 15, 1882, subjecting the same to plaintiff’s claim for alimony, constitutes a lien thereon in behalf of the plaintiff paramount to the claim, under said bond and deed of trust, of the building association for money advanced to Ulrich, March 22, 1882, after said bill was filed and service of subpoena. And the provisions of said final decree of June 15, 1882, are hereby continued in force until the further order of the court.

4th. That defendant, The Washington Building and Savings Association No. 4 be and the same hereby is restrained and enjoined from selling or attempting to sell the said described read estate and premises, under the said bond and deed of trust until the further order of the court.

And it is further ordered, adjudged and decreed that the costs to be taxed by the clerk, arising out of the supplemental bill, be and the same hereby are adjudged against defendants,’ Charles Otto Ulrich and the said Building and Savings Association, and that the plaintiff have execution thereof.