Lackland v. Garesche

• Decision Date: 31 March 1874
• Citation: 56 Mo. 267
• Parties: HENRY C. LACKLAND, Appellant, v. ALEX. J. P. GARESCHE Garnishee of THOMAS F. SMITH, Respondent.
• Court: Missouri Supreme Court

56 Mo. 267

HENRY C. LACKLAND, Appellant,

v.ALEX. J. P. GARESCHE Garnishee of THOMAS F. SMITH, Respondent.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

Lackland, Martin & Lackland, and H. C. Lackland, for Appellant.

According to the trust, “the net proceeds” of the sale belonged to Smith absolutely. The fact that the garnishee held the net income in a fiduciary relation does not exempt him from charge. Under Curling vs. Hyde, (10 Mo., 374,) as soon as the court ordered a distribution of the fund held by the administrator, he became liable to garnishment. On this point see also Wagn. Stat., 664, § 3. After return day a sheriff holds the money for plaintiff alone, and may be garnished. (Marvin vs. Hawley, 9 Mo., 382.)

N. Holmes, for Respondent.

Garnishment in attachment is a proceeding at law, and reaches only to legal property of the defendant, and in the possession of the garnishee as his debtor, commissary or factor. (Garnishment Act, §§ 1, 4, 8, 1 Wagn. Stat., 1870, p. 664; Attachment act, §§ 18, 19, 23, 1 Wagn. Stat., 1870, p. 184-5; Skowhegan Bank vs. Farmer, 46 Me., 293-5; Parker vs. Esty, 19 Vt., 131, Redfield C. J.; Staunts vs. Raymond, 4 Cush., 314; Pratte vs. Scott, 19 Mo., 625; Lee vs. Tabor, 8 Mo., 322; Wood vs. Edgar, 13 Mo., 451.)

The possession of legal property of the defendant, or this legal indebtedness of the garnishee to the defendant, must be also in his individual and personal character, and not in any representative character (as an administrator, a trustee, a sheriff and the like); and therefore it is, that such representative or official person cannot be garnished, until he has settled a balance, or the return day has come, and he has promised, or become liable personally to pay a given sum to a particular person, (even as the law stood before the recent statute to like effect). (Garnishment Act, § 3, 1 Wagn. Stat., 1870, p. 644; Matter of How, 9 Wend., 465, 9; Brooke vs. Cook, 8 Mass., 246; Curling vs. Hyde, 10 Mo., 376; Richard vs. Griggs, 16 Mo., 416; Marvin vs. Hawley, 9 Mo., 382.)

It must be such a personal and legal liability as would support an action at law by the defendant himself against the garnishee. (Reagan vs. Pacific R., 21 Mo., 34; Firebaugh vs. Stone, 36 Mo., 111; Weil vs. Tyler, 38 Mo., 545; Hoyt vs. Swift, 13 Vt., 129.)

If this trustee had struck a balance with Thomas F. Smith, and found a certain sum due at a given date, and promised to pay, or became legally liable to pay that sum, then he might have been garnished for it; as was held in Nelson vs. Howard, 5 Md., 131; Cootrey vs. Leister, 12 Md., 124, but no such balance had been ascertained.

Purely equitable property, or equitable interests or estates, are not subject to garnishment under the statutes. (§ 18, 1 Wagn. Stat., p. 184.) The execution act (§ 16, 1 Wagn. Stat., p. 605,) provides, indeed, that “all real estate whereof the defendant, or any person for his use, was seized in law or equity,” shall be “liable to be seized and sold upon attachment and execution,” but this evidently refers only to the levy of the execution which is issued against the defendant in the attachment suit, and not to any process of garnishment. Garnishment under statute is a proceeding at law, not a proceeding in equity, and a purely equitable jurisdiction cannot be drawn into a court of law, in such a proceeding, to confound the distinct jurisdictions. (Van Winkle vs. McKee, 7 Mo., 437; Clark vs. Henry, 9 Mo., 339; Withers vs. Shropshire, 15 Mo., 631; Barnham vs. Hopkins, 17 N. H., 259;Hoyt vs. Swift, 13 Vt., 129; Harrell vs. Whitman, 19 Ala., 135, 9; May vs. Baker, 15 Ill., 89; Perry vs. Thornton, 7 R. I., 15; Clarke vs. Farnum, 7 R. S., 174; Plunket vs. Huray, 4 Harring., 436; Johns vs. Thomas, 5 Harring., 419.)

ADAMS, Judge, delivered the opinion of the court.

This was an action by attachment, brought by the plaintiff against Thomas F. Smith, as a non-resident of this State, in which the defendant, Garesche, was summoned as garnishee. No other property or effects of the defendant, Smith, were attached, except such as were alleged to be held by the garnishee, Garesche, as trustee for the use of Smith. The property held in trust by Garesche consisted of several houses and lots in the city of St. Louis. The only interest to which Smith was entitled was the right, under certain terms and conditions, to receive the net income, during his life, arising from the rents and profits after payment of all expenses, such as taxes, insurance, repairs, etc. The nature and terms of the trust are manifested by a deed of conveyance, under which Garesche holds the title. According to a power in the original conveyance, Garesche had been substituted as the trustee in place of a prior trustee. For a full statement of the trusts of this conveyance, reference is made to the case of McIlvaine vs. Smith, et al. (42 Mo. 45); where it was held by this court that Smith had no interest in the realty, subject to sale under execution.

One of the issues raised by the pleadings was, that the conveyance under which Garesche held the trust property, was fraudulent and void as to the creditors of Smith; but this issue was entirely ignored at the trial. It was not referred to, nor was any attempt made at all, to attack the deed as being fraudulent as to creditors, and therefore, we shall treat this case as though no such issue was in it. Under this view, it was simply an attempt to draw an exclusive equity jurisdiction into a court of law, by means of the statutory process of garnishment in attachment suits. The court undertook to call a trustee of a pure express trust to account, and to enforce the performance of his duties as trustee in a trial of an issue at law, by a jury, or by the court sitting as a jury, and proceeded to examine into the state of his accounts, so far as to ascertain, as the record shows, that the trustee was accountable at least for a sum larger than the plaintiff's demand, which had been reduced to a special judgment, in the attachment suit, and then ordered the amount of that judgment to be paid to the plaintiff by the garnishee. And as the garnishee failed to comply with this order, the court declared him a debtor of the...