Bardon v. McCall

Dodge, J. 1. The greater part of the trial in the circuit court and of the briefs in this court were devoted to matters quite nonessential to the conclusion reached, namely, to the state of a long account between McCall and McKinnon at the time of the service of summons in garnishment upon Morris and Whitcomb as receivers. All this is immaterial, for it appears that independently thereof no garnishable liability or property existed in the hands of the garnishees at the time of the service of the summons upon them. The garnishing plaintiffs could, of course, stand in no better position as _ against the garnishees than could McKinnon himself. They cannot recover upon their garnishment what he could not by direct action, except as his right of action might be merely delayed to a future time. Healey v. Butler, 66 Wis. 9, 16; Edwards v. Roepke, 74 Wis. 571; Dowling v. Lancashire Ins. Co. 89 Wis. 96. The only thing upon which any liability of the garnishees is attempted to be predicated is the possession of 801 pieces of piling, for which they had made contract of purchase with McKinnon and had agreed to pay $525.80. It is established without controversy that these pieces of piling had been cut from the land of one Smith under a written contract of authorization which expressly reserved title to himself until the full purchase price was paid. Some $1,700 of purchase price remained unpaid. As early as May 4th, twelve days before the service of the garnishee summons, Morris and Whitcomb had been notified of Smith’s claim. This was the situation on May 16th when the summons in garnishment was served. [185] It is now established beyond controversy in this state that a contract such as Smith gave to McKinnon is valid and that the legal title to the logs or other timber cut from such land remains in him, as a title to real estate, and that the transaction is not affected by sec. 2311, Stats. 1898, making void conditional sales of personal property. Lillie v. Dunbar, 62 Wis. 198; Bent v. Hoxie, 90 Wis. 625, 629; Hyland v. Bohn Mfg. Co. 92 Wis. 157. It is also established that the vendee under such a contract can confer on another only the title which he himself has, except perhaps to an innocent purchaser for value under such circumstances as to warrant conclusion of waiver or estoppel as against the holder of the legal title. Lillie v. Dunbar, supra; Wing v. Thompson, 78 Wis. 256. That situation did not exist between these parties; for the receivers had not, at the time of the garnishment, parted with anything of value in consideration of the attempted transfer to them. At that time, therefore, Smith had a perfect right to reclaim the piling in question, his unpaid purchase price exceeding the value thereof more than threefold. Lillie v. Dunbar, 62 Wis. 203; Hyland v. Bohn Mfg. Co. 92 Wis. 157. Had McKinnon attempted to bring suit for the contract price of this piling on May 16th, these rights belonging to Smith and insisted upon by him would have constituted a perfect defense. They would have established that no indebtedness existed from the receivers to Mc-Kinnon. This is conclusive against the maintenance of the garnishment, and it makes no difference that Smith after-wards transferred his rights, nor what may have been the state of the accounts between such transferee and McKinnon. The finding of the court that no indebtedness from the garnishees existed, and no property was held by them belonging to McKinnon, on the date of the garnishment, is sustained by undisputed evidence; and from it results, of necessity, the judgment dismissing the garnishee action. 2. An interesting question is raised as to the possibility of [186] maintaining garnishment against these receivers, appointed as such by one of the courts of the United States. The general principle that receivers, like other officers of court, are not subject to garnishment, is invoked, to which it is answered that the statutes of the United States (Act of March 3, 1881, and Act of August 13, 1888) have expressly made receivers appointed by United States courts subject to suit, without leave of court, in respect of any act or transaction of theirs in carrying on the receivership business. Whether this statute extends to the peculiar proceeding by garnishment, a method of equitable attachment, which our statutes declare, under certain circumstances, shall be deemed an action (sec. 2766, Stats. 1898), is an interesting question, but one which we do not feel callgd upon to decide, inasmuch as no liability is established and the construction of the federal statutes were better left with the United States courts unless necessity compels state courts to deal therewith. The subject has received consideration in Irwin v. McKechnie, 58 Minn. 145; S. C. 26 L. R. A. 218; Central T. Co. v. E. T., V. & G. R. Co. 59 Fed. Rep. 523; and in Central T. Co. v. C., R. & C. R. Co. 68 Fed. Rep. 685. By the Court. — Judgment affirmed.