Brackett's Admr. v. Boreing's Admr.

Opinion of the Court by Wm. Rogers Clay, Commissioner. This is the second appeal of this case.' The opinion on the former appeal will he found in 89 S. W. 496, 28 Ky. Law Rep. 386. In 1889 John Brackett sold to Vincent Boreing and M. J..Moss his land. Boreing, — 754 — and Moss, as part of the consideration therefor, executed their note to Brackett for $1,612.79. Brackett, who had purchased a tract of land from E. Carrico and executed his note in part consideration therefor, pledged the Boreing and Moss note as collateral security. In 1891 Brackett, for the benefit of Carrico, brought suit against Boreing and Moss on the note of $1,612.79, alleging that it was wholly unpaid, and that it was part of the purchase price of the land sold and conveyed hy him to Boreing. He also alleged that he was indebted to E. Carrico, and to secure the latter in his debt had pledged the note to him, but that Carrico-, not wishing to incur the expense and trouble of an action, had returned the note to him to collect and refused to join in the action. On July 19, 1897, P. Hendrickson filed his petitibn to be made a party to the action, and praying that it be taken as-an answer and cross-petition against Boreing and Brackett. In this pleading he set up that he had obtained judgments and return of “no property found”' in 1893, and that he had taken out an attachment in the action instituted thereon and summoned-Boreing- and Moss as garnishees, attaching any money in their-hand’s that they owed Brackett. At the same term the three actions that were pending in the court — E. Gregory v. Brackett, Hendrickson, and Boreing, P. Hendrickson v. Brackett and Boreing, and Hogan Miller and Dink Miller v. Brackett ( Hendrickson, and Boreing, all o-f which were actions hy creditors upon return of “no property found” against John Brackett, in which Boreing was- garnishee — were consolidated with the suit of John Brackett v. Vincent Boreing, etc., above referred to. On September 10, 1897, William Lock, assignee of the Cumberland Valley Bank, ,'which'' had procured judgments against P. Hendrick — 755 — son amounting to $781.24, and upon which execution had been returned “no property found,” instituted an equitable action against P. Hendrickson and Y. Boreing in which he alleged that he was “informed, believes, and charges it to be true that defendant Y. Boreing had in his hands considerable money which is owing to one John Brackett, but had been attached by and will be and is due and owing to defendant P. Hendrickson.” On October 30, 1899, Lock filed an amended petition in which he fully sets out the attachment lien of Hendrickson, and then says: “At said time the said Boreing was indebted' to said Brackett by note for purchase money on land in the sum of $1,612.79, with interest from September 24, 1890, until paid, and also the sum of $3,178 for and on account of purchase money that was due and owing said Brackett.” Boreing was summoned to answer and disclose any legal or equitable interest or other property in his hands belonging to said Hendrickson on September 10,1897. On January 31,1900, Hannah Hendrickson, administratrix of P. Hendrickson, filed a petition for revivor, and asked that she recover of John Brackett and Y. Boreing the sum of $250 pursuant to a compromise agreement between John Brackett and Hendrickson, which she alleged was executed on August 17, 1898. On December 28, 1900, V. Boreing filed his answer to this petition, which in part is as follows: “He (Boreing) says that on the 8th day of August, 1898, by writing, the said P. Hendrickson then and there signed and delivered to this defendant and sold and assigned each of the judgments held by him against John Brackett and mentioned in the said petition of Hannah Hendrickson; and this defendant is and has been ever since the owner and holder of said judgment. * * *” On January 14, 1901, Hannah — 756 — Hendrickson, by a verified reply, pleaded non est factum as to the alleged writing of August 8, 1898. On October 21, 1901, Brackett’s administrator filed a reply to said answer of Boreing in which it was denied (1) that Boreing purchased the three judgments of Hendrickson against Brackett, or that Hendrickson executed, signed, or delivered the alleged writing of August 8,1898; (2) that John Brackett made a full and complete settlement with his creditor, P. Hendrickson, on August 17, 1898; that said settlement was made in good faith, without notice, actual or constructive, of any assignment of said judgments to said Boreing; (3) that if said writing of assignment was ever made it was procured for the further purpose of defrauding the said Brackett and his creditors, and was procured by fraud, covin, and deceit; (4) that if Boreing did p-ay said Hendrickson the alleged $100 for the alleged assignment of said judgments he did so as the agent of said Brackett, and the $100 so paid was the money of said Brackett, which the said Boreing held in trust for him. On the former appeal of this case the judgment was reversed and the trial court directed to enter a judgment in favor of Brackett’s administrator for the sum of $3,178, with interest from July 5, 1899, in addition to the judgment on the note as given by the circuit court. Upon the return of this case it was submitted to the court for the determination of the following questions: (1) Whether-personal judgment should go against M. J. Moss for the sum of $3,178 with interest; (2) to determine the conflicting claims between Brackett’s administrator and Boreing as to the various judgments claimed to have been purchased by Boreing; (3) to determine the. conflicting claims between Boreing and Hendrickson’s administratrix with reference — 757 — to the Hendrickson judgments; (4) to determine the conflicting claims between Boreing and the assignee of the Cumberland Valley Bank. Thereupon the trial court held that Brackett’s administrator was not entitled to a personal judgment against Moss for $3,178 with interest; that Boreing’s administrators were entitled to credit for the amount of the judgment in favor of Hogan and Dink Miller and for the amount of the judgments in favor of P. Hendrickson, also for certain other credits which are not disputed; that the claim of Hannah Hendrickson, administratrix of P. Hendrickson, against the administrator of John Brackett, by reason of the alleged settlement made between Brackett and Hendrickson, should be dismissed ; also that the claim of the assignee of the Cumberland Valley Bank be dismissed. Judgment was then entered accordingly, and Brackett’s administrator and the assignee of the Cumberland Valley Bank prosecute this appeal. First. It appears that Brackett’s administrator simply made Moss a party defendant to the action. Nowhere in the record did Brackett or his administrator pray for a personal judgment against Moss for the land sold by Brackett to Boreing. Under these circumstances Brackett’s administrator was not entitled to a personal judgment against Moss, and the lower court did not err in so holding. Second. Brackett’s administrator contends that Boreing’s administrators are not entitled to credit for the Hogan and Dink Miller and P. Hendrickson judgments upon the following grounds: (a) Boreing was indebted to Brackett, and after the service of the attachment by the attaching creditors on Boreing the money of Brackett was tied up in Boreing’s hands and was then held by Boreing as trustee for Brackett, — 758 — and' he could not therefore use the money of Brackett to purchase the judgments of the attaching creditors, as the relationship then existing between Brackett and Boreing was thereby made one offtrust; (b) Boreing entered into a positive agreement with Brackett to purchase the judgments in question for the benefit of Brackett. (a) In support of the first proposition counsel for Brackett’s administrator cite several authorities; but an examination of these authorities shows that they do not go to the extent of holding that a debtor who is garnisheed thereby becomes a trustee for his creditor whose funds are attached. On the other hand, the authorities in certain jurisdictions hold that the garnishee, by virtue of the attachment, becomes the trustee merely of the attaching creditors. Perkins v. Guy, 2 Mont. 15; Royer et al. v. Fleming et al., 58 Mo. 438. Manifestly, unless there is a contract to that effect, a debtor is never a trustee for his creditor. Nor do we see how the fact that the funds in the debtor’s hands are attached can at all change the relation which the debtor sustains to his creditor. The law is well settled that a debtor may purchase debts due from his creditor to others at less than their value, and demand a settlement for the full amount of the debts so purchased (Young v. Miller, 7 B. Mon. 540; Otwell v. Cook, 9 B. Mon. 357; McBrayer v. Dean, etc., 100 Ky. 398, 18 Ky. L. R. 847, 38 S. W. 508); and we fail to see any reason why this rule should be changed merely because the creditor from whom such claims has been purchased has also filed suit and obtained an attachment against the debtor. "We are therefore of the opinion that the attachments against Boreing by the judgment creditors of Brackett did not make Boreing a trustee for Brackett so as to require that he — 759 — should be entitled to set-off against Brackett only the amounts actually paid for the judgments. (b) As to whether or not Boreing acted as the agent of Brackett in the purchase of the Hogan and Dink Miller and Hendrickson judgments, the evidence is about as follows: Boreing swears positively that he had no- agreement or understanding with Brackett whereby he was to purchase such judgments as the agent of Brackett-. Moss, who made the purchases for Boreing, swears that they Were purchased for Boreing, and not for Brackett. On the other hand, Brackett swears that Boreing agreed with him to purchase the judgments in question for his (Brackett’s) benefit. There are also certain letters from1 Boreing and Moss to Brackett. Moss, in one of his letters, advises Brackett to settle with Hendrickson. Boreing also wrote to Brackett that Hendrickson was anxious to settle, and asked Brackett what he (Boreing) should do. Brackett’s reputation for truth is discredited by several witnesses. The letters of Boreing-and Moss to him tend somewhat to confirm his statements. It does not appear, however, in the record that Brackett ever acted upon the suggestion of Moss, or that Moss acted for Brackett in making the settlements with the Millers and Hendrickson. Nor does it appear that after the receipt of the letter from Boreing, Brackett, acted upon the suggestion therein contained and directed Boreing what to do. On the contrary, it appears, that Brackett thereafter effected-, or attempted to effect, a compromise with Hendrickson. In this attempted settlement he acted upon his own initiative. He did not, nor did he pretend to, act through the intervention of Boreing as his agent or trustee. We must therefore conclude that he decided to ignore Boreing’s proposition, and to act for himself with — 760 — reference to the settlement of the Hendrickson judgments. Brackett’s administrator contends that the evidence of Boreing and Moss is incompetent, for the reason that both Brackett and' Hendrickson were dead at the time this testimony was given. It does appear feat at the time a portion of their testimony was offered Brackett and Hendrickson were both dead. "While Brackett’s administrator filed exceptions to certain answers of Boreing and Moss, it does not appear that these exceptions were passed upon by the trial court, and they will therefore be deemed to have been waived. Lewis v. Wright, etc., 3 Bush 311; Patterson, etc., v. Hansel, etc., 4 Bush 654; Hon v. Harned, 38 S. W. 688, 18 Ky. Law Rep. 864. With the evidence of Boreing and Moss upon the one side and the evidence of Brackett and the letters to Brackett from Boreing and Moss on the other, with nothing to show that he (Brackett) ever acted upon the suggestions contained in the letters, we are unable to say that the conclusion of the chancellor that Boreing acted for himself in purchasing the judgments in question is erroneous. It appears, however, according to the testimony of Moss, that Boreing paid $100 for the Hendrickson judgment, and also agreed to pay the fee of Weller and Hays. In the year 1903 judgment was entered directing Boreing to pay the fee of Weller and Hays, and that he be given credit for the amount so paid as against Brackett. Whether this judgment was entered because of the agreement on behalf of Boreing to pay the fee of Weller and Hays, or whether it resulted alone from the fact that Weller and Hays had- a lien upon the judgments in question for the amount of their fee, does not appear. In either event the amount so directed to be paid was in effect a part — 761 — of the purchase price paid for the judgments, for Boreing had purchased the Hendrickson judgments prior to that time and was then the owner and holder of them. Manifestly, then, it would be improper for Boreing to set off both the full amount of the Hendrickson judgments and the amount of the fee paid Weller and Hays. Brackett’s estate can not be charged with the judgments in full, and a portion of the purchase price paid for the judgments. In this respect the judgment herein is erroneous. As the judgment of 1903 directed that Boreing be given credit for the amount of the Weller and Hays fee, the amount so credited should be deducted from the amount of the Hendrickson judgments. Third. The assignment of the Hendrickson judgment by Hendrickson to Boreing appears to have been made on -August 8, 1898. Hannah Hendrickson, as administratrix of P. Hendrickson, filed a settlement alleged to have been made between Hendrickson and Brackett, by the terms of which it was agreed that Hendrickson should be paid the sum of $250. She, therefore, claims the amount going to her husband under that settlement. It appears, however, that the settlement in question was made on August 17, 1898, about nine days after the assignment previously made by her husband' to Boreing. The evidence as to the exact time when the assignment from Hendrickson to Boreing was made, and the evidence as to whether any such settlement was ever affected between Brackett and Hendrickson, are so vague and uncertain as to leave the mind in doubt, and for this reason the judgment of the chancellor dismissing the claim of Hannah Hendrickson will not be disturbed. Burt & Brabb Lumber Co. v. Bailey, 60 S. W. 485, 22 — 762 — Ky. Law Rep. 1264; Spencer v. Society of Shakers, 64 S. W. 468, 23 Ky. Law Rep. 854. Fourth. The last question to be determined concerns the claim of the assignee, Cumberland Valley Bank. The bank contends that it has a lien on the money owing Brackett by Boreing for the satisfaction of its debt against Hendrickson, and that this lien is superior to the claim of Boreing arising out of his purchase of the Hendrickson judgments. It appears that the bank’s action was filed on September 10, 1897, after it had procured judgments and! a return of “no property found’’’ against P. Hendrickson. This action was instituted prior to the time that Boreing purchased the Hendrickson judgments. At the time of the institution of this suit Hendrickson had obtained judgments against Brackett, and attachments had been issued against Boreing. These attachments had been sustained. The original petition filed by the bank’s assignee alleged that “he is informed, believes, and charges it to be true that defendant V. Boreing had in his hands considerable money which is owing to one John Brackett, but had been attached by and will be and is due and owing to defendant P. Hendrickson.” To this suit Boreing and Hendrickson were both made parties. Thereafter an amended petition was filed making Brackett a party defendant, and Brackett entered his appearance. Between the filing of the original petition and the amended petition Boreing bought the judgments in question. The trial court dismissed the claim of the bank’s assignee on the ground that Brackett, who was a necessary party, had not been made a party to the action prior to the time that Boreing bought the judgments, and that Boreing was in no sense the debtor of Hendrickson. — 763 — Section 439 of the Civil Code of Practice is as follow's: “After an execution of fieri facias, directed to the county in which the judgment was rendered, or to the county of the defendant’s residence, is returned by the proper officer, either as to the whole or part thereof, in substance, no property found to satisfy the same, the plaintiff to the' execution may institute an equitable action for the discovery of any money, chose in action, equitable or legal interest, and all other property to which the defendant is entitled, and for subjecting the same to the satisfaction of the judgment; and in such actions persons indebted to the defendant or holding money or property in which he has an interest, or holding evidences or securities for the same, may be also made defendants. ” This court has held that the above section was intended to enable the creditor to subject to the payment of his claim any money, choses in action, equitable or legal interest, and all other property to which the debtor is entitled; that the statute is remedial and should be liberally construed, with a view to promote its object, which evidently was to enable a creditor, after a return of “no property found,” to reach by this kind of proceeding all property of the judgment defendant. Merriwether v. Bell, etc., 58 S. W. 987, 22 Ky. Law Rep. 844; Farmers’ Bank of Kentucky v. Morris, etc., 79 Ky. 157. In this case Boreing was indebted to Brackett, Hendrickson had attached the money due from Boreing to Brackett in Boreing’s hands, the attachment had been sustained, and so much of the money due Brackett by Boreing as equaled the Hendrickson judgments was then due, not to Brackett, but to Hendrickson, vahóse attachment had been sustained. At this time — 764 — the bank’s assignee attached in Boreing’s hands the money thus due to Hendrickson. We are therefore of opinion that Boreing was holding money or property in which Hendrickson had an interest, and the service of the attachment upon him was sufficient notice that it was the purpose of the bank’s assignee to attach the funds so held by him. Boreing had notice of the purpose of the attachment, and the fact that Brackett was not then a party could in no way affect his liability. Before final judgment Brackett was made a party. In the meantime Boreing bought the Hendrickson judgments at his peril. Nothing that he could do after the service of the attachment could defeat the claim of the bank to the funds attached in his hands. The trial court, therefore, erred in dismissing the claim of the bank’s assignee. Upon the return of the case the court will direct the payment by Boreing’s administrators to the assignee of the Cumberland Valley Bank of its debt, interest, and costs. Boreing’s administrators will then be credited against Brackett’s administrator, with the full amount of the Hendrickson judgments, less the Weller and Hays fee, but will not be entitled to credit for the amount directed to be paid to the assignee of the Cumberland Valley Bank. Por the foregoing reasons, the judgment as to Hendrickson’s administratrix is affirmed, and the-judgment as to Brackett’s administrator and the assignee of the Cumberland Valley Bank is reversed, and cause remanded, with directions to the trial court to enter judgment ini conformity with this opinion.