Hussa v. Sikorski

BaedeeN, J. There being no certificate that the bill of exceptions contains all the evidence, the only question in this court is whether the pleadings and findings sustain the judgment. Wille v. Bartz, 88 Wis. 424; In re Meseberg's Estate, 91 Wis. 399; Williamson v. Neeves, 94 Wis. 656. The record and findings show that one Frank Havel had executed and delivered to the defendant John SihorsM two notes secured by mortgages on real estate, upon which, at the date of the garnishment, there was due the sum of $510. Havel desired to raise more money on the mortgaged premises. The notes were not due. Silwrsld, however, agreed to accept payment of the same. Hickisch, the garnishee, was employed by Havel to negotiate the new loan, and see to the payment and satisfaction of the mortgages held by SihorsM. Pursuant to the agreement to accept payment of these notes and mortgages^ SihorsM satisfied the mortgages of record. Hickisch had the money to pay the same, and after the satisfaction, and before the money was paid over, the garnishment was made. The finding of the court is to the effect that Hickisch had this money from Havel, which, [134] for a valuable consideration, be bad agreed to pay to Silcorsld in settlement and satisfaction of tbe Havel notes and mortgages, and that Silcorsld bad agreed to receive tbe same from Hicbiscb in satisfaction thereof. Upon- this state of facts, tbe court found, as a matter of law, that tbe money in tbe hands of Hicbiscb was garnisbable, and directed judgment accordingly. "Was this judgment warranted by tbe facts found? Tbe answer of tbe garnishee, upon which no issue was taben, states, in substance, that be is in no manner and upon no account whatever indebted or under liability to the defendant John Silcorsld, and that be bad in bis possession no real estate, and no personal property, effects, or credits, belonging to him, except tbe sum of $510, which sum, be is informed and believes, belongs to Silcorsld. None of the findings are inconsistent with this answer, even if it be conceded that such a finding could be made without issue having been taben thereon. The finding that tbe garnishee bad agreed to pay this money to Silcorsld did not mabe him Silcorsld's debtor. It was to be paid in satisfaction of Havel’s notes and mortgages, and the finding that Silcorsld agreed to receive it tbr'ougb or from tbe garnishee does not in any sense change their relation. There is no finding that Silcorsld agreed to accept Hicb-iscb as bis debtor, or to release Havel from bis indebtedness. Construing tbe findings to tbe widest limit in favor of tbe plaintiff, they amount to simply this: Hicbisch received tbe money from Havel, and agreed with him to pay it to Silcor-sld in settlement of Havel’s notes and mortgages, and Si-lcorsld agreed to receive and accept such payment. There was no substitution of debtors. Hicbiscb simply stood in Havel’s shoes. He was simply tbe conduit through which tbe money was to go from its source to its destination. Tbe fact that tbe court found that Silcorsld agreed to receive the money from Hicbisch is of no significance. Under tbe cir135 cum stances, it amounts to nothing more than a finding that he agreed to accept payment of these notes and mortgages. The plain inference from the finding is that Hickisch was nothing more than Havel’s agent in the transaction, and that he agreed to take the money Havel gave him and procure a satisfaction of these notes and mortgages. At no time in these proceedings has the plaintiff been in a position to charge Havel as garnishee. Havel was the maker of the notes and mortgages, and under sec. 2769, E. S. 1878, could not be held liable in such proceedings. Eor the same reason, his agent, holding money to pay the same, cannot be held liable. While this money was in his hands, it was the money of his principal, and not the money of Siliorshi. It would be a most anomalous state of the law which would forbid the garnishment of the maker of negotiable paper, and yet permit his agent, holding money to pay the same, to be made liable in such proceedings. This court has held that a garnishee is not liable for property in his possession unless the right of the principal defendant thereto was absolute. Edwards v. Roepke, 74 Wis. 571. Sikorski could not have enforced payment of these notes at the time of the alleged transaction, because they were not.due. Havel could not have compelled Silwrsld to receive the money thereon, because there was no consideration found to support his agreement so to do. As bearing upon the right of plaintiff to secure the money in the hands of Hickisch, we refer to the cases of Bates v. C., M. & St. P. R. Co. 60 Wis. 307, and Gore v. Brucker, 94 Wis. 65, where the following language from a Massachusetts case is quoted with approval: “We think it never could have been the intention of the legislature that the mere possession of property by a party having no claim to hold it against the owner should render him liable as trustee, and thereby subject him to trouble and expense in answering the claim in which he has no interest. Such a construction of the statute would be prejudicial in very many cases, and cannot be admitted.” [136] There is no pretense in this case that Hickisch had any right to hold this money as against Havel, who was the owner of it. It could not become the property of SiTtorsld until it was actually paid over. It is said, however, that, as soon as he signed the satisfaction of the mortgages, his situation changed. All questions of agency between Havel and Hickisch were at an end, and SiTtorsld could have maintained an action for his money directly against the latter, and therefore the money was subject to garnishment. In other words, that the satisfaction of the mortgages in question, in legal effect, transmuted the title to the money in Hickisch’s hands directly to SiTtorsld. The act of satisfying the mortgages had no such alchemistic effect. This contention ignores entirely the relations which the parties sustained to each other, as hereinbefore set forth. The mere release of the mortgage lien did not satisfy the debt. The debt remained until the actual payment of the money due. The court found that the alleged transfer of these securities from Siltorslti to his wife was fraudulent and void as to the former’s creditors. Since, as we have found, there is no creditor here who is in a position to challenge that transfer, this finding becomes immaterial, and must fall with the plaintiff’s case. As between these' two defendants, it is admitted that the real ownership of the mortgage debts is in the wife. Therefore, as between them, the wife is entitled to this money. The mortgages having been satisfied of record, and the agent of the mortgagor having paid the money into court, disclaiming any right to hold the same, no good reason is perceived why the money should not be paid to Mrs. SiTtorsld upon surrender of the securities mentioned. By the Gowt.- — ■ The judgment of the circuit court is reversed, and the cause remanded with directions to enter judgment dismissing the garnishee proceedings with costs, and directing the clerk to pay the money in his hands to the defendant Mary SiTtorsld upon surrender of said notes and mortgages.