Wilkerson v. Phillips, 118 Ky. 559

Wilkerson v. Phillips

118 Ky. 559 | Ky. Ct. App. | 1904

Opinion of the court by

Chief Justice BURJNAM

Affirming.

The issue in this case is the priority pf liens between two attaching creditors of R. L. McClure. On the 5th day of *560September, 1902, the appellee as surviving partner of H. & Hines & Co., brought her action in the Warren circuit court against R. L. McClure upon a return of nulla bona After reciting her judgment and return of nulla bona indorsed on the execution which issued thereon, she alleged that on the -day of September, 1902, Mrs. C. B. McClure had died a resident of Warren county, the owner of certain property, leaving the defendant R. L. McClure one ■of her next of kin, and entitled by inheritance to a certain portion of the property, and that no personal representative had been appointed to administer the estate; that, in addition to the interest which R. L. McClure took by inheritance, decedent held the possession of certain moneys and bonds, to which he was now entitled; and prayed for a judgment against him, and that he be restrained from disposing of any interest held' by him in decedent’s estate, or any money or other property held by her or in her possession at the time of her death, and he was called upon to .answer and show what property or interest he had in the /estate of decedent. Summons and attachment issued, upon which were indorsed these words: “The object of this action is to garnishee any funds or property in the estate or possession of the estate of Mrs. C. B. McClure, deceased, belonging to R. L. McClure, and to restrain you and the personal representative of said decedent from paying over same to R. L. McClure, or any one for him, and to restrain him from disposing of same until further order of the Warden circuit court.” Copies of these processes were served on R. McClure, and also upon J. C. Sims. R. L. McClure failed to answer, but on the 6th of October, 1902, James C. Sims filed an answer, in which he stated that he was not at the time the order of attachment was iserlved upon him the personal representative of Mrs. C. 'B. McClure, but *561that be bad in bis bands $113.25, wbieb belonged to tbe estate. On tbe 26tb of November, 1903, be filed an additional answer, in wbieb be stated that on tbe 16tb of October, 1902, be bad been duly appointed and bad qualified as administrator of tbe estate of Mrs. C. B. McClure, deceased; and that be bad in bis bands, due to tbe defendant R. L. McClure from tbe estate of Mrs. C. B. McClure, $537.12, as shown by bis settlement as administrator on tbe 20 tb of October, 1902. Tbe appellant, James H. Wilkerson, on tbe 20tb of October, 1902, after J. C. Sims bad been appointed and qualified as administrator of Mrs. C. B. McClure, filed bis petition in equity in tbe Warren circuit court against R. L. McClure and J. O. Sims, administrator, to enforce the payment of four promissory notes executed' to him by R. L. McClure for $250. each, and at tbe same time took out a general attachment against tbe interest of R. L. McClure in tbe estate of Mrs. C. B. McClure, which was served upon R. L. McClure and Sims as administrator. J. C. Sims filed an’ answer in the suit of Wilkerson against R. L. McClure similar to that filed in tbe action of Mrs. Phillips. Tbe cases were consolidated by order of tbe circuit court, and beard together, and a judgment rendered giving Mrs. Phillips a prior lien upon tbe interest of R. L. McClure, and Wilkerson has appealed, and asks a reversal of tbe judgment of tbe lower court upon tbe ground that tbe description of tbe interest of R. L. McClure in tbe estate of O. B. McClure sought to be subjected by tbe appellee Phillips was not described in the petition with sufficient accuracy and certainty as to create a lis pendens lien upon tbe funds sought to be subjected.

As a general proposition, tbe doctrine of notice by Us pen-dens only extends to equitable suits which involve tbe title *562to land, or which, are brought to establish, an equitable estate, interest, or right in land, or to enforce a lien, incumbrance, or charge thereon, and does not extend to suits concerning personal property, as there is no necessity for invoking the rule in such litigation under ordinary circumstances.. See Pomeroy’s Equity Jurisprudence, sections 635, 636. But this court in a number of opinions has recognized the right of a creditor by petition in equity to subject a known and described equity and holds this remedy is unaffected by sections 439 and 442 of the Civil Code of Practice. In Parsons v. Meyburg, etc., 62 Ky., 207, the court said: “It seems to this court that the provision of the Code regulating proceedings and attachment on bills of discovery and subjection of property after the return of No property’ on an execution do not apply to a petition in equity for the subjection of an equity known and described, or for enforcing an equitable lien. Any such proceeding in r&in operates as a lien without a formal attachment. And consequently the preexisting law authorizing and regulating such proceedings is not inconsistent with the modern law regulating. attachments. Wherefore the common law lien of the appellees, who first sued in rent, was superior to the subsequent attachment lien of appellants.” This case was followed by Murphy, etc. v. Cochran’s Trustee, 80 Ky., 239, 3 R., 727, in which it was said: “In an action on a return of No property,’ where the proceeding is to subject property specifically described, no attachment levy is necessary to give a lien as against the defendant in the action. The lien is an incident to such a proceeding in equity,- and independent of the Code. Section 442 of the Code was not intended to interfere with such liens, but to enlarge the power of a court of equity in the subjection of property to the satisfaction of an ascertained debt where a proceeding for discovery is *563necessary. In such case a general attachment may be issued, the levy of which will create a lien, or a lien may be created by the service of a summons, with the object of the action indorsed thereon, on the person holding or controlling the defendant’s property. In this case the main object of the action being to subject the property in controversy, and it being sufficiently described' in order to identification, an equitable lien was created as against the debtor by the filing of the petition and service of summons.” It is not necessary that the petition should describe specifically each bond, note, or chose in action in which the estate is invested. The averments of the bill must, however, be so definite that any one on reading it can learn what property was intended! to be made the subject of the litigation: In this case the petition plainly recites that the purpose of the suit was to subject the interest of E. L. McClure in the estate of Mrs. C. B. McClure, deceased. What that interest actually was required a settlement of the estate of decedent, and when this, was ascertained the equitable lien of appellee attached thereto.

As the judgment of the chancellor is in conformity with this view, it is affirmed.