Trager, Canman & Co. v. Feibleman

CLOPTON, J. An attachment sued out by the appellants against the appellee, January 1, j 890, was levied the next day on certain personal property. On the same day, appellee filed with the officer levying the process a verified claim to the property as exempt under section 2521 of the Code. Notice thereof having been given to the plaintiffs, they instituted a contest of the claim, in the mode prescribed by the statute. It may be conceded that the claim of exemption filed with the officer, not having been accompanied by a statement of personal property, choses in action and money, as required by section 2521, was insufficient. Instead of objecting thereto on this ground, plaintiffs made a written demand upon defendant, August 16, 1890, to file in the Circuit Court a full and complete inventory of all his personal property, except such as is specially exempt from levy and sale, all moneys, debts and choses in action belonging to him, or in which he is beneficially interested. By the written demand under section 2525, the plaintiffs waived the objection to the sufficiency of the claim of exemption. Tonsmere v. Buckland, 88 Ala. 312. Defendant having filed an inventory in answer to the demand, an issue ivas formed under the direction of the court, the plaintiffs alleging that the property levied on “is subject to the plaintiffs’ attachment in this case, and is not exempted by law to the defendant.” The real issue in such contest is, whether the claimant had other personal property, or choses in action or money, not embraced in the inventory. But it is unnecessary to consider the propriety of the ruling of the [62] court refusing to require defendant to join in tbe special issues tendered by plaintiffs. Under tbe general issue as formed, tbey were allowed and bad tbe full benefit wliicb tbey could have derived from tbe special issues; and tbe refusal, if erroneous, is error without injury. Plaintiffs having introduced evidence showing that defendant, shortly before tbe issue of tbe attachment, received money for goods sold, and bad a considerable sum in bis possession, it was competent for him to show that be had appropriated tbe money to tbe payment of debts justly due by him. Tbe evidence was relevant to tbe issue, whether the money belonged to him, or was in bis possession, when tbe written demand for an inventory was made. It is shown that on January 1, 1890, tbe same day on which tbe attachment was issued, defendant banded to bis clerk, who is bis brother, a sum of money — $950—which be directed him to pay to bis mother and brother on account of debts which be owed them respectively, and get their receipts for tbe same. Tbe clerk was not the agent of tbe mother or brother to collect tbe money, and did not pay it to either of them until tbe latter part of January, when be went to Meridian and Vicksburg, where tbey respectively resided. Tbe justness of tbe debts is not controverted. The court substantially charged tbe jury, if defendant was justly indebted to bis mother and brother in tbe sums stated, and paid the money to bis clerk, in good faith, before tbe levy of tbe attachment, for tbe purpose of paying tbe debts, and tbe clerk paid tbe same to tbe mother and brother after tbe levy of tbe attachment, and tbe same was received by them in payment of their respective debts, this was a ratification of tbe payment of tbe money to tbe clerk, and tbe jury must find for tbe defendant. Charges were asked by plaintiffs asserting tbe contrary proposition, which ' were refused. Plaintiffs contend, that merely placing tbe money in tbe bands of tbe clerk, with a request that be pay it to specified creditors, did not, ipso facto, change tbe ownership; that tbe . request was revocable, at tbe option of tbe defendant, until tbe money was paid to tbe creditors, or tbey ratified tbe payment to tbe clerk; and tbey could not ratify tbe payment after tbe issue and levy of the attachment, so as to cut off tbe right of plaintiffs to subject it to their demand; hence, that tbe money not having been paid to tbe creditors, and there being no ratification until after tbe levy and issue of tbe attachment, tbe money must be estimatecl in ascertaining tbe amount of tbe exemption to which defendant is enti63 tied, and be deducted from bis claim of exemptions, as provided by section 2531. The well settled rule is, that wben one person delivers money to another, accompanied by a mere request, without any present valuable consideration, to pay it to a third person, such request does not, of itself, change the ownership of the money. — Coleman v. Hatcher, 77 Ala. 217. But, if the money is subsequently paid to such third person, and he receives it in payment of his debt, this is a ratification of the unauthorized act, which operates, by relation, to change the ownership of tbe money as of the time of its delivery to the receiver. — Brooks v. Hildreth, 22 Ala. 469. Until such payment or ratification, or until the depositary has entered into some arrangement with the creditor, by which he is brought under obligation to hold the money for him, and by which he would be prejudiced by a revocation of the original direction, the money is subject to garnishment in his hands. The mere selection and claim of certain property as exempt, though levied on by attachment or execution, does not deprive the defendant of the right to prefer creditors, and apply any property he may own, not levied on, to the payment of their just debts.— Weiss v. Levy, 69 Ala 209. If he has other property or money which may be subjected to his debts, it is incumbent on the attaching or execution creditor to reach and subject it by legal process. Plaintiffs had the right to garnishee the clerk, and thereby intercept the payment of the money to the mother and brother; but failing to do so, they acquired no lien on the money, and its application to the uses originally intended — the payment of their debts — offended no rights of plaintiffs; no rights of theirs intervened, so as to prevent a ratification from having the same force and effect as previous authority to collect the money. . Of course, this rule has no application, if the defendant thereby attempted a fraudulent disposition of the money as against his existing creditors. It may be that, had the defendant filed an inventory when he filed his claim of exemption with the officer, such inventory should have embraced the money in the hands of the clerk, which had not then been paid to the creditors, stating the facts. It had, however, been paid over when the written demand was made for an inventory. In such case, the issue is not, whether the money belonged to defendant at the time he filed his claim of exemption, but whether it belonged to him when the written demand to file an inventory in the Circuit [64] Court was made under section 2525. The money having been paid to the mother and brother, and received by them in payment of their debts, before the written demand, can not be estimated, if their debts be just, in ascertaining the amount of the exemption to which defendent is entitled, nor deducted from his claim of exemption. But there is evidence tending to show that defendant stated to witness, the day before the attachment was issued, that he had between three and four hundred dollars worth of accounts, which he intended to give his niece. These accounts, if he in fact had them at that time, and had made no proper disposition of them, should have been included in his inventory; a gift of them to his niece would have been fraudulent as against the plaintiffs. The charge under consideration instructs the jury that on the hypothesized facts therein stated they must find for the defendant. This conclusion excluded from the consideration of the jury whether the defendant had accounts which he should have included, but had failed to embrace in his inventory, though he may in fact have given them to his niece after filing his claim of exemption. Eor this reason the charge is erroneous. Beversed and remanded.