Dunham v. Bentley

Ladd, J. 1 The judgment plaintiff died before the second execution was issued. No indorsement whatever was made by the clerk, as required by section 3130 of the Code of 1873, .and the defendant has entered no complaint of this omission, though, under section 3134, he might have enjoined or moved to quash the execution. The record, then, raises the question whether an execution without indorsement, issued after the death of the judgment plaintiff, is void, or only voidable. A judgment, at common law, became dormant in a year and a day, but it might be revived by resort to the scire facias. An execution issued after the lapse of this time, and without so doing, was only voidable. If the defendant chose to interpose no objection to its regularity, others could not do so for him, and he was not permitted to do so collaterally. Freeman, Executions, section 29. Where the time within which execution may be issued has been- extended by statute, the same rule is adopted. Mariner v. Coon, 16 Wis. 468; Bank v. Spencer, 18 N. Y. 154. So, too, where the time within which an execution may issue after a previous one, is limited, an execution issued therefor, without revivor has been adjudged voidable only. Gardner v. Railway Co., 102 Ala. 635 (48 Am. St. 84, 15 South. Rep. 271); Eddy v. Coldwell, 23 Or. 163 (37 Am. St. 672, 31 Pac. Rep. 475.) In analogy with the principle involved in these cases some courts have held an execution issued after the judgment creditor’s death, and without revivor, hot void. Day v. Sharp, 34 Am. Dec. 509; Hughes v. Wilkinson, 37 Miss. 482; Darlington v. Speakman, 9 Watts & S. 182; Jenness v. Lapeer, 42 Mich. 469 (4 N. W. Rep. 220). With [139] better reason such an execution hag been' adjudged void on two grounds: (1) By the death of plaintiff, the party to whom authority was given to enforce the judgment is withdrawn; (2) a- new party, ben'efited and concerned in the judgment, is introduced in the record. Brown v. Parker, 15 Ill. 307; Meyer v. Mintonye, 106 Ill. 414; Bellinger v. Ford, 21 Barb. 311; Morgan v. Taylor, 38 N. J. Law, 317; Stewart v. Nuckols, 50 Am. Dec. 127. This last case overrules Day v. Sharp, supra. The grounds for holding such an execution void seem unassailable. If the sole plaintiff is dead, the right of another to stand in his stead ought to be first determined, and the record show in whose behalf the benefits accruing under the judgment are taken. This insures the proper application of the amount collected to the satisfaction of the debt. It avoids an unexplained variance in the record. That letters of administration have issued is not presumed, and the authority given plaintiff to resort to the legal processes of compulsory payment ought not to be exercised by another until his rights to do so be fully ascertained. Such a rule serves a double purpose; it guards the rights of the judgment defendant, and protects the property of the deceased plaintiff. The provisions of the statute recognize, rather than obviate, the necessity of some kind of a revivor. Upon the filing of an affidavit with the clerk of court, setting forth the death of the plaintiff, the nam es of his heirs or representatives, and, if the latter, accompanied by a certificate of qualification, he is required to indorse on the execution the fact of such death, and the names of those entitled to the judgment; and when this is done the sheriff proceeds as though the parties whose names are so- indorsed were the only plaintiffs. Sections 3131-3133, Code 1873.. If the personal representatives or heirs are not properly stated in the indorsement, the execution may be quashed; .and, if not entitled to the judgment, its •enforcement may be enjoined. Section 3134, A remedy [140] is thus provided where there is a defective indorsement; none, in event of no indorsement. Nor, in such a case, was any necessary, as the execution, being void, would be no protection in the hands of the officer, and a levy thereunder amount to no more than' a trespass. This view is in harmony with the conclusion arrived at in Meek v. Bunker, 33 Iowa, 169, where it is said of such an execution that it “could not have vitality to sustain a levy,” and that, “being invalid, the property levied upon under it could not be held.” See White v. Secor, 58 Iowa, 533'. It follows that the execution was- void, and the garnishee not held thereunder. 2 II. The issuance of the second execution, as it was void, did not amount to an abandonment of the first one. West v. St. John, 63 Iowa, 287; Friyer v. McNaughton, 67 N. W. Rep. 978 (Mich.). Nor did the return of the first execution in any way affect the garnishment proceedings. Section 3052, Code 18,73. The proceeds thereof maybe readily appropriated, under the order of the court, to. the satisfaction of the judgment, without the use of the original execution. No question .is made as to the sufficiency of the indorsement on the first execution, and any property held by Staman, as administrator of David Bentley, deceased, belonging to the defendant Albert Bentley, must be accounted for.thereunder. [140] III. The assignment by the defendant of his prospective share in his father’s estate to Philoma Bentley and Murray & Farr prior to his father’s death was fully ratified after that event, so. that the policy of permitting transfers of contingent interests of this character need not be considered. But the plaintiffs contend that there was no. consideration for the assignment to Philoma Bentley. The evidence, [141] when fairly considered, quite satisfactorily shows, that sihe received one thousand dollars from her father’s estate, and .afterwards loaned it to Morris & Griffin, taking their note therefor; and.that ■she received a note of five hundred dollars from the estate of her mother. These notes were collected by her husband, the defendant, in 1883, and the proceeds appropriated by him to his own use. With six per cent, interest, the sums so appropriated, together with forty-five dollars loaned to him, amounted to something over two thousand dollars in 1886, and for this amount he then executed his promissory note, which is the consideration of the assignment. It will thus be seen that the facts in this case do not bring, it within the rule that a gift of money or property by the wife to the husband without any promise to return or repay as a consideration will not sustain a subsequent transfer of property by the husband to her when attacked by creditors. Hanson v. Manley, 72 Iowa, 51; Porter v. Globe, 88 Iowa, 565. Here the wife did not give or loan money to her husband. He simply took the notes, collected them, and appropriated the proceeds to his own use. He was under the same obligation to, account to his wife for this misappropriated money as he would have been in case of a stranger. Section 2204 of the Code of 1878 provides that when either husband or wife obtains possession or control of property belonging to the other, the owner of such property may maintain an action therefor. If Mrs. Bentley could maintain an action for this money, as she surely had the right to do under this section, then certainly she could settle the claim by taking the note. But it is insisted that she was never the owner of the note. It was executed at a late hour of the night, and at the time of several other transactions, and was handed to her the next day. She then indorsed it to Hosea Goodenow, to [142] whom her husband had transferred substantially all his property. The purpose seems to have been that any surplus remaining, after satisfying the indebtedness due Goodenow be applied on her note. Goodenow sent the note back to Mrs. Bentley through his son. We think the evidence warrants the conclusion that the note remained the property of Mrs. Bentley, and was only indorsed to Goodenow for the purpose above stated. 6 IY. :A: contract was entered into between Mrs. Bentley and Murray & Farr, by the terms of which the firm was to receive thirty per centum of the money in the hands of the administrator, for their services in protecting Mrs. Bentley’s interest in such property against the suit of Dunham and other creditors of defendant, and for collecting the same. This contract, it is said, is void, because its purpose was to aid the assignee in defeating the defendant’s creditors-. Such an -agreement, when carried out, and made effective, may have that result, because inevitable in protecting the bona fide rights of the purchaser. If there was a fraudulent purpose in the original transfer of the property, neither the purchaser nor the contingent interest of the attorney will be protected. But, if this property belonged to Mrs. Bentley, then she had the right, under the decisions -of this court, to contract payment of a portion of the property recovered for the services of her attorneys in protecting it. Winslow v. Railway Co., 71 Iowa, 197; Jewel v. Neidy, 61 Iowa, 299; McDonald v. Railway Co., 29 Iowa, 170. [142] Y. Under the assignment of the defendant, Murray & Farr were to receive twenty per centum of the net share of the defendant in his father’s estate, for services by them rendered as 'attorneys in- first resisting the appointment of a guardian for his father, and after143 wards procuring the appointment thereof because of insanity. At the end of that controversy the attorneys engaged therein filed a stipulation that each firm receive out of the estate, for services, the sum of one hundred and fifty dollars. The court ordered the payment of this amount, but provided that it should be in full compensation for all services rendered. This condition in the record entry was known to Murray & Farr, and, though they protested, they received- the money. On what ground the protest was based we can only surmise, as it does not appear in the record. We conclude that it must have been owing to the fact that this condition was not contained in the stipulation. That the court was authorized to fix the fees for the services rendered is not questioned, nor could- it be after receiving the payment provided. The firm had the option of taking or re-fusing this money, but, having taken it, they are not in a situation to object to the condition on which it was paid. If the order was •erroneous, it might have 'been modified or corrected. The value of the services rendered does not appear, and, in the absence of evidence, it will be presumed the compensation allowed by the court was entirely adequate. Having received payment in full from, the guardian of David Bentley, whose estate was primarily liable for such services, compensation cannot be exacted a second time from Albert Bentley, or his property. Nior will the ¡assignee be permitted to- accomplish indirectly that which could not have been done in direct action. The consideration for the assignment having -been- fully discharged, it canno t be insisted on as against Albert Bentley nor his creditors, who are permitted to avail themselves of every defense he might urge. The twenty per centum of his inheritance remained his property, and Should be applied in satisfaction of -the judgment.— Reversed.