Williams v. Reynolds, 7 Ind. 622

Williams v. Reynolds

7 Ind. 622 | Ind. | 1856

Davison, J.

Bill in chancery by the appellee against *623the appellants. The facts presented by the bill are, in substance, as follows:

On the 20th of Jume, 1838, Runnion, Phares and Winters gave their promissory note to Williams (one of the appellants) for 3,441 dollars, payable in twelve months, and to secure the payment thereof, they executed to him a mortgage on a certain tract of land in Tippecanoe county, and also on certain town lots in Americus, in said county. On the 28th of- March, 1840, Williams, Runnion, Phares, Winters and Reynolds (the appellee) executed an agreement in reference to said note and real estate, which is as follows: Whereas Runnion, Phares and Winters are indebted to M.. D. Williams in about the sum of 3,800 dollars (principal and interest), more or less, on a note secured by mortgage on certain lands, supposed to be about 170 acres, and also on certain town lots in Americus; and whereas, by arrangement between the parties, Williams is to receive, in liquidation of his debt, 2,000 dollars, to be paid by three equal instalments, in three notes drawn by Rimnion, Phares and Winters, and indorsed by Reynolds, payable in one, two and three years from this date, with interest, and for the balance of his debt, said Williams is to receive said lands in payment at 10 dollars per acre, so far as they will go, and for the balance a sufficient number of said town lots, at 10 dollars per lot (said Williams, Rimnion, Phares and Winters to choose a lot alternately, Williams having the first choice till a sufficient number are chosen), said payments to be considered as made at this date; and whereas it is understood that Williams (with the assent of all the parties hereby expressed) is to transfer all Ms interest in the residue of said town lots to said Reynolds, and Williams is to foreclose his mortgage on said land and such of said lots as may be chosen as aforesaid, and to take such decree of foreclosure in full satisfaction of his debt; therefore, in witness, &c.

According to the said agreement, the appellee became the indorser of three notes, for the aggregate sum of 2,000 dollars, drawn by Rimnion, Phares and Winters, and payable to Williams, in one, two and three years, and it is al*624leged that at the date of the agreement, there was due and owing from Rumión, Phares and Winters to Williams 3,600 dollars and 40 cents and no more; and that upon actual measurement the land described in said mortgage was found to be one hundred and seventy-one acres and fourteen-hundredths of an acre, which, at 10 dollars per acre amounted to 1,711 dollars and 40 cents, which, when added to the amount of said three notes, would make 3,711 dollars and 40 cents, being 111 dollars and 40 cents over the amount due said Williams at the date of said agreement; that the appellee was compelled, as indorser of said notes, to pay the same, with interest, to said Williams; that Rumión, Phares and Winters are insolvent, and the money by him paid to Williams, as indorser for them, remains wholly unpaid. Williams purchased the lands at sheriff’s sale, under a decree of foreclosure, and on the 11th of June, 1849, sold and conveyed the same to said Stock-well, who stiff owes Williams a balance of the purchase-money, amounting to 1,026 dollars and 50 cents. Williams resides in Virginia; and it is alleged that if the money so due from Slockwell should be paid over to Williams, the appellee will be without remedy in the premises. The biff prays for an injunction, &c., and that, on a final hearing, the Court decree that Williams, out of said sum of 1,026 dollars, pay to the appellee the said 111 dollars and 40 cents, with interest from the 28th day of March, 1840, and for general relief, &c.

The appellants demurred to the bill. The Court overruled the demurrer, and rendered a final decree for the appellee in accordance with the prayer of the bill.

It will be observed that the plaintiff in the bill does not seek, as by virtue of the agreement copied perhaps he might, to be subrogated generally to the rights of the mortgagee, as to the remaining interest covered by the mortgage. He does not ask for the benefit of the lots in Americas. He rather claims to subject to the payment of his demand the 111 dollars overplus on the farm as a chose in action. In this view, his bill is not sustainable. Choses in action can not, as the general rule, be subjected to exe*625cution. The Unknown Heirs, &c., v. Kimball, 4 Ind. R. 546.— Totten v. McManus, 5 id. 407, and cases cited. The principle is stated in the case of “ The Unknown Heirs" supra, and need not here be elaborated. Equity, in such cases, only comes in aid of the execution at law. Real estate is subject to execution. When, therefore, a party obtains a judgment and execution against a defendant, he is entitled to enforce them against the real estate of such defendant. But if the title to such estate is clouded or vested in another, so that the lien of the judgment will not attach, and the legal title can not be conveyed on an execution sale, equity comes to the aid of the execution at law, and perfects the title. So, as to personal property. But as equity is, in these cases, simply in aid of the law, it interferes only as to such property as is liable to sale on execution at law, when the title is actually in the execution defendant, unless there be some special ground of equity jurisdiction, as fraud, trust, &c. When the decree in this case was rendered, at all events, the right to the 111 dollars mentioned in the bill could not have been taken on execution at law against Williams, under any circumstances. It was not of a species of property subject to execution. Perhaps it is not now, except by the consent of the owner. See 2 R. S., pp. 134,136, ss. 433, 438.

E. H Brackett and G. S. Orth, for the appellants. B. G. Gregory and R. Jones, for the appellee. Per Curiam.

The decree is reversed with costs. Cause remanded, &c.