Bower v. Holladay

• Decision Date: 09 April 1889
• Citation: 22 P. 553,18 Or. 491
• Parties: BOWER v. HOLLADAY.
• Court: Oregon Supreme Court

22 P. 553

18 Or. 491

BOWER v. HOLLADAY.

Supreme Court of Oregon

April 9, 1889

Appeal from circuit court, Multnomah county; L.B. STEARNS, Judge.

On the 20th day of February, 1886, the respondent recovered a judgment in said circuit court against said Ben Holladay for the sum of $18,900, to bear interest at the rate of 10 per cent. per annum, and for the further sum of $375, costs and disbursements. Execution was duly issued upon said judgment on said 20th day of February, 1886, and afterwards returned wholly unsatisfied. Ben Holladay died on or about July 7 1887, leaving a last will and testament, in which said Joseph Holladay and others were appointed executors. Joseph Holladay alone qualified as executor of the will, and letters testamentary were duly issued to him on or about April 11 1888. On the 20th day of October, 1888, a second execution was issued on said judgment, and returned unsatisfied on the 5th day of November next thereafter. On November 9, 1888 upon leave obtained therefor, a third execution was issued upon said judgment, wherein, after reciting the recovery of the judgment, the issuance and return of the two former executions, the death of Ben Holladay, the granting of letters to said Joseph Holladay, and that more than six months had elapsed since, and that Joseph Holladay and George W. Weidler held certain property as receivers, and George W Weidler as trustee held, or had under his control, certain other property belonging to said deceased, including about 5,331 shares of capital stock of the Willamette Real-Estate Company, and that the judgment was wholly unpaid, and that leave of the court has been obtained permitting the issuance of execution, the sheriff was directed to satisfy said judgment and costs out of any property in the hands of Ben Holladay's personal representatives, heirs, devisees legatees, tenants of real property, or trustees, as such, and especially out of any property belonging to the estate of Ben Holladay in the hands of Joseph Holladay, executor and personal representative of said Ben Holladay, or in the hands of George W. Weidler as trustee, excepting property held by Joseph Holladay and said Weidler as receivers, and specially directing said sheriff to satisfy said judgment and costs out of the said 5,331 shares of capital stock held by said Weidler as trustee. After the issuance and delivery of the said execution to the sheriff of the county of Multnomah for service, the said Joseph Holladay moved the said circuit court to quash the same. The motion was founded upon the affidavit of the said Joseph Holladay, which contained substantially the facts above set out, and the further statement that the said judgment recovered by the said Bower was, on the 18th day of October, 1888, presented to the affiant, as such executor, for examination and allowance or rejection, as required by law; that the large amount of said claim and attorney fees, and the large amount of other business and claims against said estate, required time for consideration and examination; that affiant had been exerting himself to ascertain the true condition and justice of the claim and other claims, but, for want of sufficient time, had not yet so informed himself as to be able to pass upon said claims presented within the last month, which were about 34 in number, and more than $200,000 in amount; that said judgment was not, to the knowledge of affiant, a lien upon real or personal property belonging to said estate; that on the 10th day of November, 1888, a copy of said execution, (the third execution,) with the certificate and notice thereto attached, was delivered by said sheriff to George W. Weidler; also a duplicate thereof was, on the same date, delivered to said Weidler, addressed to the Willamette Real-Estate Company, which notice was to the effect that the sheriff attached all debts, moneys, etc., in his hands, belonging to the estate of Ben Holladay, and especially said capital stock of the Willamette Real-Estate Company; that there was a large amount of debts due and owing from said estate to divers parties, and, as affiant was informed, said estate would be unable to pay more than a small percentage thereof; that the parties controlling said judgment, and the said sheriff, were urging said Weidler to make return and answer to such process, and that affiant was informed said judgment was not a preferred debt against said estate, and was not a lien upon any particular property, real or personal, and that the said execution was not issued or directed to be levied upon any particular property, but ran generally against the property of said estate, and that the same was unlawfully issued. The said circuit court, after hearing said motion to quash the said execution, denied the same, which is the decision appealed from.

(Syllabus by the Court.)

Under sections 276 and 281, subd. 2, Code Or., a judgment creditor, whose judgment was recovered against the debtor during the life-time of the latter, is entitled to have an execution issued on the judgment against the property of the debtor, or for the delivery of real or personal property, notwithstanding the death of such debtor.

The authority, however, contained in said sections, must be construed with reference to other provisions of the Code empowering county courts, sitting in probate, to direct the payment of debts and legacies, and the distribution of the estates of intestates, and to order the sale and disposition of the real and personal property of deceased persons; and which would seem to be in conflict with the right to seize or levy upon assets by virtue of the execution, in order to satisfy the judgment, while they remained in the hands of the executor or administrator, for the purposes of the administration, unless sanctioned by the authority of the county court in which the proceedings were pending.

Nor should such sections of the Code be construed as giving preference in favor of the creditor in the enforcement of payment of the debt, without establishing an equity superior to that of the other creditors of the debtor's estate; but, the latter questions not being involved in the case, the views expressed in the opinion regarding them may be deemed merely suggestive.

R. & E.B. Williams, for appellant.

Williams & Wood, for respondent.

THAYER, C.J., (after stating the facts as above.)

The question presented herein for the consideration of the court is whether an execution can be issued upon a judgment after the death of the judgment debtor. Our probate jurisdiction is so extensive, and has been resorted to so generally, in the adjustment and settlement of claims against the estates of deceased persons, that no other mode to effect such object has been considered than that pointed out in the probate act. Hence the proposition that an execution against the property of a judgment debtor can be issued after his death, upon a judgment recovered in his life-time, is liable to be startling, as it creates the impression that the officer to whom the writ is issued can seize and sequester the property of the deceased, regardless of the authority of the probate court, or the order of preference in the payment of claims against the estate, as provided by law. No attempt seems to have been made in this state to issue an execution against a deceased person, except in the case of Knott v Shaw, 5 Or. 482. It was held in that case, as appears from the syllabus, that the statute gave the state a lien upon all property, real and personal, of a criminal, from the time of the commission of the crime; and that when such property had been sold, either by the party convicted, or by his executor or administrator, it was chargeable with the incumbrance in the inverse order of its alienation; that the property last sold was to be first charged. This statement of the law in the case was, in my opinion, altogether too broad, and is liable to be misleading. The latter proposition contained in the statement, to the effect that when such property had been sold by the executor or administrator it was chargeable with the incumbrances, cannot, in my judgment, be maintained. The statute which gives the state a lien in such a case did not intend to allow the state to enforce it except in accordance with its other provisions; and when the party upon whose property the lien attached has died, and the property has gone into the hands of an executor or administrator to be administered upon, its disposition in accordance with the law relating to probate proceedings must be regarded binding. The state, no more than an individual, having a lien in such a case, can remain passive until the property has been fully administered upon, and then assert the lien. The real property sold by the deceased in his life-time would doubtless be subject to the lien, which could be enforced against it; but that which went into the hands of the administrator became subject to the jurisdiction and control of the probate court, as effectually as the property of a bankrupt is subject to the jurisdiction and control of a court of bankruptcy. In the case of property coming within the jurisdiction of a probate court, a lien upon it must be enforced in accordance with the laws governing the proceedings in such court; otherwise its orders and decrees, although confessedly within its jurisdiction, would be without force. As to the mere question,...