McGinnis v. Wheeler

Paine, J. The findings of the court below, that the plaintiff was not the owner of the note and mortgage, and that they were the property of her son Robert, and that the suit was brought in her name for the purpose of defeating the claims of the creditors of Robert, seem to be in accordance with the clear weight of the testimony. This being so, she is in no position to question the correctness of the rulings of that court as to the validity or effect of the proceedings under which the defendant Wheeler claimed title. Her counsel contends that those proceedings were void, and that a constable has no lawful authority to sell choses in action on an execution from a justice’s court; and that therefore, as the defendant acquired no title through that sale, he is not in a situation to question the plaintiff’s title. But the difficulty with the plaintiff’s case is, that the defendant has the first chance to apply that rule. Having proved to the satisfaction of the court below, and of this court, that the [656] plaintiff had no title, and the burden being on her to show title, in order to maintain the action, she becomes the first victim of the rule that one without a title is not in a position to question the claims of others. We do not consider it necessary, therefore, to pass upon any of the various objections made by the appellant to the other rulings of the court. Being satisfied that the note and mortgage belonged to the plaintiff’s son, even though the proceedings of the attaching creditors were irregular, it may be that, in view of the peculiar position in which the parties have placed themselves, the judgment will do substantial justice to all concerned, though the result may have been arrived at in a somewhat irregular manner. The judgment must be affirmed. By the Court. — Judgment affirmed.