Rushton v. Rowe

The opinion of the court was delivered, by Thompson, C. J. — The result of the issue between Rowe and Rushton et al., settled, so far as our inquiry can go in this case, that there was in the hands of the latter, due to L. A. George & Co., the sum of $1664.05, as of the date of the verdict on the scire facias against the garnishee Rushton. That case is not before us now, and we cannot regard any argument predicated of the idea that the debt due by Rushton, secured by mortgage, had passed prior to the verdict by assignment to anybody else. The time for the consideration of any question of that kind was on the trial, or on a review of the trial of that case. It is entirely out of the case in hand. As the Act of the 13th of June 1836 makes it the duty of the jury trying the issue between the attaching creditor and garnishee, to find what goods or effects, if any, were in the hands of the latter at the time of the service of the attachment, and the value thereof, we are to presume that this was done in proper form, showing that the mortgage of the garnishees was attached and unpaid, and was of the value of the sum found, viz., $1664.05. This was a seizure of the security as belonging to L. A. George & Co. To make that available to the creditor it must be sued upon, and the law regards the attachment of it as an assignment to the attaching creditor. This was not controverted by the counsel for plaintiff in error. But it is alleged that a misnomer of a member of the firm of L. A. George & Co., in the title of the firm in the scire facias against the garnishees, destroys the identity of the firm in that case with the firm described in the mortgage, and therefore the plaintiffs here are not the assignees of the mortgage by operation of law, and not entitled to sue. We 66 see no such consequences as that legitimately flowing from this error in the baptismal name of a member of the firm. The mortgage was to the firm of L. A. George & Co., and that was the firm which the judgment of the court settled Was indebted to the plaintiff in the attachment, and that is the firm, in the absence of testimony to the contrary, to which the mortgage in suit was given to secure the debt, attached. The identity is to be presumed from the identity of name. We need not dwell on this. The jury in finding money in Rushton’s hands alone, secured by mortgage, must have -regarded the property mortgaged as his, as the debt secured was his. But about whose property it was, we are not called upon at this time to determine anything. Rushton is debtor to L. A. George & Co., and if the property pledged for its payment is not legally bound for it, that will be a question to be determined between the purchaser, whoever he may be, of the mortgaged premises, under the judgment on the mortgage, and its claimant. If Rushton conveyed the property to his wife, being a debtor at the time, or intending to engage in business which was hazardous, and required the creation of debts, it is not very likely that there will be much trouble in the case of the wife’s title. Still less, if he did it to delay, hinder or defraud creditors. But all this is left to be decided when a controversy arises about it, if ever. The last matter to be noticed is, whether the mortgage bore interest after the service of the attachment. It is true, there are cases in our books, such as Mackey v. Hodgson, 9 Barr 468, and Irwin v. The Railroad Co., 7 Wright 488, which decide, that a garnishee is not bound to pay interest during the litigation about the liability of the property or money in his hands, to answer the debt of the defendant. In both these cases the controversy was in the nature of an interpleader, although not so in form; and in the latter it was made a consideration also, that the garnishee had been ready and willing to pay the debt in his hands, to the party rightfully entitled. Both cases deny the rule where the delay has resulted from the litigiousness of the garnishee. If he has made difficulties, and produced delays himself, which are unreasonable, the rule does not apply. In charging as the learned judge did, that if the jury believed the evidence, no sufficient defence was made out, and the plaintiff was entitled to recover the principal sum secured by the mortgage with interest, we must presume that he did it in view of the whole testimony, and that the delay was owing to the defendant Rushton, and not occasioned at all by adverse contestants for the money. This appears in the case, and was uncontradicted, and the judge committed no error in assuming the facts to beso, and in charging that interest was to be paid, according to the express contract in the mortgage, and was recoverable up to the time of trial. If it had appeared anywhere that the defendant stood ready to pay the 67 debt and interest, he would have brought himself within the rule ; in fact, if the alleged assignee had appeared and engaged in the controversy as a claimant, it might have made a difference, hut even then, we think a willingness to pay and not litigate, should have appeared, in order to relieve from liability for interest. We will not say that the defendant was bound, in order to relieve himself from interest, to ask leave to pay the money into court to abide the contest; less might suffice, hut this would, in all such cases, he a sure way of avoiding the liability. On the whole, we see no error in this record which requires reversal of the judgment, and it is affirmed.