Langdon v. Thompson
| Decision Date | 07 March 1879 |
| Citation | 25 Minn. 509 |
| Parties | Robert B. Langdon v. Nathaniel R. Thompson |
| Court | Minnesota Supreme Court |
Plaintiff brought this action in the district court for Hennepin county, to recover the value of certain wagon-wheels, alleged to be the property of plaintiff, and to have been unlawfully taken from his possession by the defendant. The complaint alleged title and possession in the plaintiff, but did not disclose that he held the property as an assignee, or that he sued as such. The defendant in his answer justified the taking as sheriff of the county, by virtue of an execution issued to him on a judgment in an action in the same court in favor of George F. Smith and Frank B. Scribner, partners as Smith & Scribner, and against one Gaines, and certain garnishee proceedings against one Banker. A jury was waived, and the action tried before Young, J., who found the facts, in substance, as follows: On October 25, 1876, Smith & Scribner brought suit in the district court for Hennepin county against John Gaines, and on the same day caused one Banker to be summoned as garnishee of Gaines. On disclosure made by Banker, before the clerk of the court, on December 4, 1876, it appeared that, at the time of the service of the garnishee summons, he had in his possession a large amount of property belonging to Gaines including the wheels in question. On November 1, 1876, Banker turned over all this property to Gaines. On November 8, 1876 Gaines made a general assignment for the benefit of his creditors, to the plaintiff, who took possession of all the property which his assignor then possessed, including the wheels in question. On December 2, 1876, Smith & Scribner recovered and docketed judgment in their suit against Gaines. On January 5, 1877, the judge of the court filed his decision upon the clerk's report of the disclosure of the garnishee, by which he held that Banker, the garnishee should be charged with the property of Gaines which he had in possession when served with the garnishee summons, and which he had turned over to Gaines, and that an order might be drawn in conformity with such decision; but no such order, nor any order or judgment, was made or entered against the garnishee. On January 5, 1877, Smith & Scribner caused execution to be issued on their judgment against Gaines, and placed the same in the hands of the defendant in this action, as sheriff of the county, who by virtue thereof levied upon and took from the plaintiff the property in question, and afterwards advertised and sold it.
Upon these facts the court held (1) that Smith & Scribner, having failed to prosecute to judgment against Banker, the garnishee, failed to acquire a perfect lien on the property in his hands; (2) that the assignment by Gaines to plaintiff vested in the latter a legal title to the property in question; (3) that the lien of the judgment creditors against Gaines only attached from the levy of execution, on January 5, 1877; and as plaintiff's title was then complete, the execution did not protect defendant in dispossessing the plaintiff. Judgment was accordingly ordered for plaintiff, a new trial was refused and the defendant appealed.
The assignment from Gaines to plaintiff purported to convey all the property of the former to the latter, "to have and to hold the same into the said party of the second part, his successors in trust and assigns," upon the trusts usual in such instruments, and authorized him, "for the purposes of said trusts," to make collections, etc., "and also, for the purposes aforesaid, or any part thereof, to make, constitute and appoint one or more attorneys under him, and at his pleasure to revoke the same."
Order affirmed.
Benton & Benton, for appellant.
Shaw & Levi, for respondent.
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