Hine v. Brown

HART, J., (after stating the facts). The chancellor found that J. W. Brown owed the Citizens’ Bank $450 and that the $630 in the hands of Taz D. Hunt belonged to J. W. Brown. The garnishee, Taz D. Hunt, was therefore directed to pay to the Citizens’ Bank the sum of $450 out of the $630 in his hands. The intervener, J. L. Hine, alone has appealed. Therefore the decree is conclusive as to the amount due the Citizens’ Bank by J. W. Brown. This brings us to the question as to whether the $630 in the hands of Taz D. Hunt belonged to J. W. Brown; for, if the money does not belong to the defendant Brown, the plaintiff Citizens’ Bank is not legally or equitably entitled to it. On this point the testimony is as follows: Andrew Jackson obtained a mortgage foreclosure on the home place of T. J. Brown, deceased. Taz D. Hunt, the clerk of the chancery court and the garnishee herein, testified that J. W. Brown delivered to him the $630 involved in this suit and informed him that he was seeking to redeem his father’s home place in behalf of himself and the other heirs, except Fred Brown. Hunt at first refused to take the money on the ground that the land had been already redeemed on the same day by Fred Brown, also one of the children of T. J. Brown, deceased. Later on during the day, upon the advice of the chancellor, Hunt accepted the money and gave to J. W. Brown the following receipt for it: “Salem, Ark., Sept. 23, 1915. “Received of J. W. Brown the snm of $630 in a certain draft on the Peoples Bank of Springfield, Mo., given to J. W. Brown, said amount is tendered by the said J. W. Brown for the use and benefit of all the heirs of the late T. J. Brown, except Fred Brown. The said amount is for the redemption of certain lands foreclosed by Andrew Jackson on the following described lands, to-wit: (The lands were then described) “This draft is held subject to the order of the chancery court and if not used for the redemption of said lands to be returned to the said J. W. Brown. ’ ’ J. W. Brown testified that he had arranged with Mr. Hine and Mr. Jackson for Mr. Hine to take up the mortgage on his father’s home place; that, before the assignment of the mortgage indebtedness was made from Jackson to Hine, some of Mr. Jackson’s relatives died, and this delayed the matter. During this time the redemption of a part of the lands came up. J. W. Brown went to Mr. Hine and stated the circumstances to him. Hine as a matter of accommodation to Brown furnished bim with a cashier’s check for $630, which was the amount estimated to be necessary to redeem the land. J. W. Brown told Hine that he and the other heirs, except Fred Brown, wanted to redeem the land, and that the money was to be used for this purpose only. If the money was not used to redeem the land, it was to be returned to Hine. Pursuant to the agreement, Hine gave to J. W. Brown a cashier’s check, and Brown made a note to the bank for the amount at the suggestion of Hine. According to the testimony of J. L. Hine, he agreed with J. W. Brown to put up the money to take up the mortgage on his father’s home place for $2,126. $630 wás to be put up, at first, to redeem a part of the land, and this money was furnished by Hine to J. W. Brown, who represented all the other heirs, except Fred Brown. The $630 was given to Brown with the understanding that it was to be placed with the clerk of the court for the purpose of redeeming a part of the land and if it was not used for that purpose, it was to be returned to Hine. Hine was to be secured by a mortgage on whatever part of the real estate that was redeemed. According to the testimony of Hine the transaction was not a loan to Brown. He stated that the money was advanced by him for the purpose of redeeming the land; that he simply took the note of Brown for the amount so that if there should be any loss it would fall on him and not on the bank of which he was an officer. We have not set out the testimony of these witnesses on this point in full, but have stated the substance of it as it appears to us after a careful reading of their whole testimony. It is true there are some circumstances tending to contradict this view, but we think a clear preponderance of the evidence shows that the money was furnished by Hine to J. ~W. Brown to redeem a part of the lands'from a mortgage of Jackson and that the money was to be used for no other purpose. Jackson had agreed to assign his mortgage to Hine, but some of his relatives had died and this delayed the matter. The question of redeeming a part of the land from the mortgage came up in the interval, and Hine let J. W. Brown have the $630 for the sole purpose of redeeming a part of the land. The claim of the Citizens’ Bank did not originally accrue upon the faith and credit that the money on deposit with Hunt belonged to J. W. Brown. Brown’s debt to the bank accrued long before that transaction. The money belonged to Hine, and was delivered by him to Brown to be used by the latter to redeem a part of the mortgaged land and for no other purpose. The general rule is, that the creditor has no greater right against the garnishee than the defendant had before the writ was served; that he steps into the shoes of the defendant and prosecutes for him in order that the credit or property of the latter may be subjected to the payment of such judgment as may be obtained against him. Ard v. Bowie, 125 Ark. 169. It is true that J. W. Brown would have had the right to withdraw this money from Taz D. Hunt for the purpose of paying it back to Hine. But, if J. W. Brown had commenced an action against Hnnt to recover the money in his own right and Hunt had interposed as a defense that the money belonged to Hiñe, and was held by Brown in trust for him, and had introduced the evidence which was presented in this, case, J. W. Brown would have been defeated in his action. This is so because the money belonged to J. L. Hiñe, and J. W. Brown could not legally recover it in his own right. We think the facts bring this case within the principles decided in Home Land Loan Co. v. Routh, 123 Ark. 360. It was there held that money deposited in a bank by a party as agent of the principal can not be reached by garnishment proceedings by a creditor of such agent. It was also held that a creditor can not have the debt satisfied out of the property held in trust by the debtor for another, no matter how completely the debtor may have exercised apparent ownership over it, unless it was upon the face of such ownership that the credit was given. We think that a clear preponderance of the evidence shows that the funds garnished in the hands of Hunt belonged to the intervener, Hiñe, and that the court erred in holding that it was the property of the defendant Brown, and subject . to garnishment at the hands of the plaintiff, the creditor of Brown. It follows that the decree must be reversed, and the cause will be remanded with directions to the chancellor to release the fund from the garnishment proceedings and direct that it be paid over by the garnishee to the intervener, Hine. It is so ordered.