Sonnesyn v. Akin

Young, C. J. This is an appeal from an order vacating an attachment. The action in which the writ issued was brought to recover damages for a deceit alleged to have been committed by the defendants in connection with the sale by them to plaintiff of 960 acres of farm lands situated in Ransom county. The deceit which is. alleged as a cause of action consists of false representations by defendants to plaintiff that they were the owners of the land. The complaint alleges, in substance, that on the 30th day of September, 1902, the defendants, with intent to deceive and defraud the plaintiff, falsely and fraudulently stated and represented to the plaintiff' that they were the owners of the land in question, and were legally entitled to make a contract to sell and convey the same; that the: plaintiff, relying upon said representations, and believing them to’ be true, entered into a contract to purchase said lands, and paid to the defendants upon the purchase price thereof, in cash and merchandise, $12,857.33; that defendants'were not the owners of said, land, and were not legally entitled to enter into a contract to sell and convey the same; that the defendants knew said statements, were false and untrue, and they made the same for the purpose of inducing the plaintiff to pay to them the said sum of $12,857.33;: that the land in question was owned by other persons — 320 acres by George H. Collins, 320 acres by Thomas Jones, 160 acres by N. A. Lundvall, and 160 acres by Annie Frey; “that by reason of the premises the plaintiff has been damaged in the sum of' $12,857.33,” for which sum he demanded judgment, together with' his costs and disbursements. The affidavit upon which the writ was issued stated two statutory grounds for its issuance, and in the following language: “(1) That the debt upon which the action is commenced was incurred for property obtained under false pretenses; (2) that the said defendants are about to sell, assign, transfer, secrete, or otherwise dispose of their property with intent to cheat or defraud their creditors.” The affidavit further stated! “that said action is commenced for the recovery of money only, and', that a duly verified complaint therein has been filed with the clerk of the district court, which said complaint sets forth a proper cause of action for attachment in favor of said plaintiff and against said defendants.” An order to show cause why the writ should not be vacated and set aside was issued by the trial court, and, after a hearing at which a large number of affidavits in support of and in. — 229 — opposition to the motion were presented, an order was made vacating the writ, from which order this appeal is taken. We are of opinion that the attachment was properly vacated, and the order appealed from must therefore be affirmed. Section 5356, Rev. Codes 1899, provides that “the warrant shall issue upon a verified complaint, setting forth a proper cause of action for attachment in favor of the plaintiff and against the defendant, and an affidavit,, setting forth in the language of the statute one or more of the grounds of attachment enumerated in section 5352,” which grounds are eight in number. Formerly — and this is still true in a number of states — the remedy by attachment was not available except in actions upon contract. Our statute (section 5352, Rev. Codes 1899) extends the remedy to actions “for the wrongful conversion of personal property, or for damages, whether arising out of contract or otherwise.” Section 5376, Rev. Codes 1899, provides that if, upon a motion to discharge, it shall appear “to the satisfaction of the court or judge that the attachment was irregularly issued, or that the affidavit upon which it was issued is untrue, the attachment must be discharged.” It is true, plaintiff’s complaint sets forth a cause of action in which an attachment may be had. His cause of action is for damages for a deceit, but, as we have seen, section 5352, Rev. .Codes 1899, authorizes the issuance of the writ in actions “for damages, whether arising out of contract or otherwise.” The vital question presented to the trial court on the motion to vacate the writ, and to this court on this appeal, is whether the grounds set forth in the affidavit as a basis for the issuance of the writ were true. It appears from an examination of the affidavits that one of the grounds — that is, the claim that defendants were disposing of their property to defraud their creditors — was not seriously urged in the trial court, and it is not urged or relied upon in this court. This ground is clearly not sustained by the evidence. Counsel for appellant rely entirely upon the allegation in his affidavit that “the debt upon which the action is commenced was incurred for property obtained under false pretenses,” which is the sixth ground for atachment under section 5352, Rev. Codes 1899, and the affidavits submitted on the motion are chiefly directed to the question of the defendants’ alleged false pretenses of ownership of the land. On the question as to whether they did so represent, the evidence is in square conflict. It is not disputed that the plaintiff contracted to pay the sum of $25,920 for the entire 960 — 230 — acres, or that he paid thereon the sum of $12,857.33, as alleged by him. Neither is the fact disputed that the defendants did not have the legal title when they entered into the contract. It is shown, however, that they had contracts from the owners of all of it except the Frey quarter section, and that they previously had a contract for this quarter, which had been surrendered for the purpose of obtaining a new one, and that subsequent to the attachment, and at a greatly enhanced price, they purchased the Frey land, and at the hearing of the motion were in a position to convey all of the land to the plaintiff. No formal findings of fact were made by the trial court, but it is apparent from the record that the trial judge was of opinion that the defendants did not represent to plaintiff that they had title, and for this reason vacated the attachment. Counsel for the appellant, strenuously urge on this appeal that this was an error, and that the order vacating the writ should therefore be reversed. Their contention is, first, that the clear preponderance of evidence' is to the effect that the defendants did in fact commit the deceit alleged (that is, falsely represented that they had title); and, second, that, even if the evidence does not establish that fact clearly, the court should not, in any event, pass upon the question upon affidavits in advance of the trial on the merits, for the reason that “it necessarily involves the issues of the action itself, and that issue must be determined by a jury.” The authorities are divided on the question as to whether it' is proper, on a motion to dissolve air attachment upon the ground that it was improperly issued, to pass upon the grounds of the attachment, where they are the same as the issues in the main action. Newell et al. v. Whitwell (Mont.) 40 Pac. 866; Kuehn v. Paroni, (Nev.) 19 Pac. 273, and Olmsted v. Rivers, 9 Neb. 234, 2 N. W. 366, may be cited as holding that it is not. Bundrem v. Denn, 25 Kan. 430, and Carnahan v. Gustine et al. (Okl.) 37 Pac. 594,.are to the effect that courts should not refuse to determine the truth of the grounds of attachment stated in the affidavit, even when it involves a determination of the facts constituting plaintiff’s cause of action. The view that we have taken of this case renders a consideration of both of these contentions unnecessary. For the purposes of this case, we might assume both contentions of appellant’s counsel to be true; that is, that the affidavits clearly establish the false representation; or again, we might assume the correctness of their legal proposition, viz., that, when the ’cause of action and ground — 231 — of attachment are the same, the truth of the same should not be inquired .into upon affidavits, but left to the determination of the jury at the trial of the action. Nevertheless we would be compelled to sustain the order vacating the attachment. The attachment must fall because of the falsity of the affidavit in another and vital particular, and one which is not affected by either of counsel’s contentions. The falsity of the affidavit lies in the statement that his action is commenced upon a debt. It may be conceded that the evidence shows that the defendants used false pretenses, but false pretenses alone do not give the right to attach under the subdivision in question. The fundamental feature of this, ground is a cause of action based upon a debt; another is that the debt is for property; and, finally, that the debt shall have been incurred or contracted by the defendant by false pretenses. The plaintiff’s action is not commenced upon a debt. On the contrary, his action is based upon a tort. His action is not to enforce the payment of a debt arising out of a contract, either express or implied, but is prosecuted for the purpose of recovering damages for an alleged tort. The greatest latitude of definition would not enable us to say that an action based upon a tort is an action based upon a debt. Blackstone defines “debt” as “a sum of money due by certain and express agreement.” This definition has been broadened. Mr. Justice Field, in Perry v. Washburn, 20 Cal. 318, p. 350, in determining whether a tax is a debt, stated that “a debt is a sum of money due by contract, express or implied. A tax is not a debt. * * * It is not founded upon contract. It does not establish the relation of debtor and creditor between the taxpayer and state. It owes its existence to the action of the legislative power, and does not depend for its validity or enforcement upon the individual assent of the taxpayer.” It.has been held, “with regard to attachment, that it is such a debt as can be enforced in an- action of debt or indebitatus assumpsit.” 1 Shinn on Attachment, section 14; Mills v. Findlay, 14 Ga. 230 ; Elliott v. Jackson, 3 Wis. 649. In Sunday Mirror Co. v. Galvin, 55 Mo. App. 412, it was held that “a conversion of money, though fraudulent on the part of the tort feasor, will not constitute a fraudulent- contraction of a debt, within the puryiew of the statute defining the grounds of attachment.” The reasoning of the commissioner, which was upheld, was to the effect that, where “the gravamen of the complaint lies in tort, there can be no debt, within the meaning of the attachment law.” The fourteenth subdivision of the Missouri statute — 232 — (Rev. St. 1879, section 398) authorizes an attachment “where the debt was fraudulently contracted on the part of the debtor.” In the prior case of Finlay v. Bryson, 84 Mo. 664, in which the plaintiff attempted to waive the tort and sue in assumpsit, and thus sustain an attachment under the above subdivision, it was held that “one cannot waive a tort and sue in assumpsit if the effect of it is to give jurisdiction over the subject matter to a court which otherwise would not possess it, or to bring the case within the terms of a statute which otherwise would not include it. Nor can one sue in assumpsit for the wrongful conversion of personal property, and insist upon such conversion as a basis of a fraud to sustain an attachment in the same suit.” The court, after stating that the Missouri statute authorized the remedy by attachment “in all civil actions, whether resting on contract or sounding in tort,” said that, “when an attachment is sought upon the grounds contained in the fourteenth subdivision, the misconduct of the defendant, constituting the ground of the attachment, ‘ must relate to the same cause of action set forth in the petition; and it is there, as well as in the affidavit of attachment, referred to as an action of debt. The plaintiff must depose in his affidavit that the debt sued for in the petition was fraudulently contracted on the part of the debtor. This language, in its ordinary signification, does not aptly apply to actions sounding in tort. In construing statutes, we are expected to accept the meaning of language as indicated by its ordinary use, unless it is apparent from the context and subject matter that a different meaning must have been intended by the lawmaking power. * * * I think there never was a time in our judicial history when the subject matter of a debt fraudulently contracted on the part of the debtor was not well known in our courts. * * * Debts induced by fraud are common things in our Reports, and, as such, they answer the language of the fourteenth subdivision, without going further. The fraudulent transaction referred to must culminate in a debt. The debtor must have been guilty of some material, deceptive act, word, or concealment, done or suffered by him with thefintent to induce the opposite party to consent to the debt. The opposite party must have relied upon such false acts or manifestations of the debtor, and yielded his consent to the contract on the faith thereof. In this manner, alone, results a debt fraudulently contracted on the part of the debtor. * * * The evidence fails to show that any debt was ever contracted at all by the debtor. * * * As a mat — 233 — ter of fact, he agreed to no debt, nor can he lawfully treat it as such. That privilege belongs to the other side, not to him.” In the above case it was also contended that the plaintiff was at liberty to waive the tort* and sue in assumpsit for money had and received, and thus sustain his attachment. This the court denied, saying that, “so far as the defendant is concerned, this right rests upon a fiction imposed at the plaintiff’s pleasure upon the actual facts of misconduct of the defendant, which discloses no elements of a promise, contract, or agreement. But when the gravamen of the transaction sounds in tort, the plaintiff will not be indulged in this fiction, if the effect of it is to give jurisdiction over the subject matter to a court which otherwise would not possess it, or to bring the case within the terms of the statute which otherwise would not include it. If, therefore, the only ingredient of indebtedness distinguishing the ;ground of the attachments rests on fiction, and is furnished by the plaintiff at his election, my conclusion is that the transaction intended in the affidavit cannot, within the meaning of the statute, .answer the description of a debt fraudulently contracted on the part of the debtor.” Goss v. Board of Commissioners, 4 Colo. 468, is to the same effect. See, also, Jacoby v. Gogell, 5 Serg. & R. 450; Porter v. Hildebrand, 14 Pa. 129. In this case, however, the plaintiff has not attempted to waive the tort and sue for money had and received. On the contrary, he declares upon the tort. His complaint states a cause of action for damages for deceit. Clark v. Edgar, 12 Mo. App. 345. As we have seen, the plaintiff’s cause of action is one in which ,a writ of attachment may issue if proper statutory grounds exist, but it does not follow that all of the eight grounds enumerated in .section 5352, Rev. Codes 1899, were available to him. It is apparent that the first ground stated in said section, towit, the non-residence of defendant, and also a number of others, apply indiscriminately to all actions in which a writ may issue, regardless of the nature of the action, whether it is upon a contract, judgment for the conversion of personal property, or for damages. It is also .apparent that all of the eight grounds do not apply to all classes of actions. For instance, a writ may be had under the eighth ground “in an action to recover -purchase' money for personal property sold to the defendant,” in which case the writ maf be “levied upon such property.” No one would seriously contend that this ground when stated in an affidavit, would sustain an attachment in an — 234 — action based upon a tort, or any other action than one commenced' to recover purchase money for personal property. We think it is-equally plain that the sixth ground upon which the appellant relies, which authorizes the issuance of the writ “when the debt upon, which the action is commenced was incurred for property obtained under false pretenses,” restricts it to actions brought to recover upon debts, and that it has no application to any other actions, such as actions to recover damages for torts, as in the case under consideration. The order vacating the attachment will be affirmed. All concur.