Littlejohn v. Turner

• Decision Date: 04 December 1888
• Parties: LITTLEJOHN v. TURNER ET AL.
• Court: Wisconsin Supreme Court

73 Wis. 113

40 N.W. 621

LITTLEJOHN

v.TURNER ET AL.

Supreme Court of Wisconsin.

December 4, 1888.

Appeal from circuit court, Waukesha county; A. SCOTT SLOAN, Judge.

Action by Newton M. Littlejohn against Eugene S. Turner and Richard L. Gove, executors of Elijah Gove, deceased, to enjoin the execution sale of plaintiff's land. There was a judgment for plaintiff, and defendants appealed.Eugene S. Turner and William J. Turner, ( H. G. Turner, of counsel,) for appellants.

Weeks & Steele, A. Cook, and Vernon Tichenor, for respondent.

TAYLOR, J.

The respondent brought this action in the circuit court, for the purpose of perpetually enjoining the sale of certain real estate, owned by him, upon an execution issued upon a judgment in favor of the said Elijah Gove, deceased, against one Benjamin Boorman, and to have the court adjudge that such judgment was not a lien upon said real estate. The facts in the case, as claimed by the defendants, are substantially as follows: On May 5, 1883, Benjamin Boorman was indebted to said Elijah Gove $900, on two promissory notes then due. On that day said Gove commenced an action against said Boorman upon said notes, in the circuit court of Waukesha county. In said action, an attachment was issued, and, upon such attachment, the real estate now claimed to be owned by the plaintiff in this action was lawfully attached. That on May 31, 1883, judgment was duly entered in said action, in favor of said Gove, for the sum of $1,011.46. In 1884, the said plaintiff, Gove, died; and the appellants, Turner and R. L. Gove,--the executors of the last will of said deceased,--were substituted as plaintiffs in said action; and, on the 8th day of January, 1885, execution was issued upon said judgment, placed in the hands of the sheriff of said county of Waukesha, who advertised the property so attached in said action for sale, to satisfy such judgment. The foregoing facts, showing the claim of the defendants, Turner and Gove, as executors, etc., against the property in question, are not disputed, and are verities in the case. The facts upon which the respondent, Littlejohn, relies, to defeat this claim of the said executors, are substantially as follows On the 4th day of May, 1883, the said Benjamin Boorman conveyed the real estate, which was attached in the action of said Gove, on the 5th day of May, 1883, to one Chester A. Blodgett, in trust, to sell the same, and pay off certain liens then existing on the same; and, after paying said liens, if there was any surplus, to distribute the same equally among the other creditors of said Boorman. On the 19th of May, 1883, the said Benjamin Boorman made a voluntary assignment of all his property, both real and personal, including the real estate mentioned and described in said trust deed, to said Chester A. Blodgett, as assignee; and, under this assignment, the said assignee took possession of all the property of said Boorman, including the real estate in question in this action. That the proper schedules of creditors and assets were made by the said assignee, under said assignment. That, in the schedules of assets, the real estate in question in this case was included; and the debt due to said Elijah Gove was included in the schedule of the liabilities of the assignor. That on the 15th of August, 1883, the said Elijah Gove, by his agent and attorney, Eugene S. Turner, filed proofs of the claim of said Gove against said Boorman with the clerk of the circuit court of Waukesha county, in said assignment proceedings. The proofs of this claim show the nature of the indebtedness, and state the fact that judgment had been recovered on said claim, by said E. Gove, against said Boorman, on the 31st day of May, 1883, in the circuit court of said Waukesha county, stating the amount of the judgment, including the costs; but such proofs of claim made no mention of the fact that the real estate of the defendant Boorman had been attached in such action, or that said Gove claimed any lien, by attachment or otherwise, upon any of the property, real or personal, which had been assigned by said Boorman to his assignee, Blodgett. On the 18th day of December, the said Chester A. Blodgett, as assignee of the estate of the said Boorman, presented to the circuit court of Waukesha county a petition, setting forth the fact that said Boorman had made a voluntary assignment of all his property to him, for the benefitof all his creditors; that he had duly accepted the trusts of such assignment; that among the property of said Boorman, so assigned to him, was the real estate in controversy in this action; and that in the discharge of his duties as assignee he had executed a written contract with the said Newton M. Littlejohn, to sell him the property known as the “Saratoga Flouring-Mills,” with the water-power thereunto belonging, and particularly describing the same, for the sum of $17,000 in cash, or the equivalent. This flouring-mill property is the property in controversy in this action. The petition then sets forth that the assignee has made diligent and honest endeavors to sell said property, for nearly seven months; and has endeavored to find a purchaser for said property, at the sum of $25,000,--the value fixed upon said property in the inventory of assets mentioned in said assignment proceedings; and sets forth particularly the means he has resorted to, to find a purchaser for said property; that he has been unable to find a purchaser at the price of $25,000; that the highest offer he has received for said property,--other than the offer of $17,000, made by said Littlejohn,--is $15,000. The petitioner then alleges that $17,000 is the highest sum that can be obtained therefor, and, in his opinion, is the full value of said property. The petition also sets up the fact that said property is mortgaged to the Waukesha National Bank for the sum of $15,000, which said mortgage was due and unpaid, and that, in order to prevent a threatened foreclosure of said mortgage, the said assignee had, on October 15, 1883, paid the interest due thereon to said mortgagee, amounting to the sum of $462.94; that said payment of interest was made out of the net profits made by the petitioner in running said mill, as assignee; and asks the court to approve of such payment. The following is the prayer of the petition: “Wherefore, your petitioner submits the matter of said sale of said property to this court; and prays that, upon the considerations aforesaid, the said court may confirm said sale, and authorize, by its order and decree in said matter to be made, your petitioner to make and execute a conveyance of said property, in accordance with the terms of said contract, so made, as aforesaid, with said Newton M. Littlejohn, and, out of the consideration therefor, to pay and discharge all mortgages and uncontested liens and incumbrances against said property, retaining the residue thereof, if any, to be disposed of according to law; and for such other and further relief as in the premises may be just and proper.” Upon filing this petition, the following order was made by the court:

“CIRCUIT COURT, WAUKESHA COUNTY, STATE OF WISCONSIN.

In the Matter of the Voluntary Assignment of Benjamin Boorman, of Waukesha, in Said County.

On reading and filing of the petition of Chester A. Blodgett, the assignee of the above-named Benjamin Boorman, in this matter, representing, among other things, that it is advisable that said assignee be authorized to sell and convey certain real estate of the assets of said assignor, to-wit, the Saratoga Flouring-Mills, so-called, in the village of Waukesha, in said county, with the water-power thereto belonging, and with which said mills are being operated; that the said real estate was appraised, in the inventory of the assets of said Boorman, at the sum of $25,000; that the said assignee is offered the sum of $17,000 for the said real estate, and has entered into a contract with Newton M. Littlejohn to convey the same to him for said sum of $17,000, if this court shall approve of such conveyance,--therefore, it is hereby ordered, on the application of said assignee, that the said petition be heard before this court, at the court-house in said county, on the 26th day of December, instant, at four o'clock in the afternoon of that day, or as soon thereafter as the parties can be heard; and it is further ordered that notice of the time and place of such hearing be made known to all the creditors of said Benjamin Boorman, by mailing to each such creditor, addressed to his post-office address, a copy of this order.

A. SCOTT SLOAN, Judge.

Dated, December 18, 1883.”

Proof of the service of this order, as required therein, was made, by the affidavit of Andrew J. Frame, which affidavit was filed in said court. On the day fixed for the hearing of said order to show cause, the court made the following order: “On reading and filing the above and foregoing petition, and on motion of Alexander Cook, attorney for the assignee, it is ordered that the said assignee of Benjamin Boorman accept the offer of N. M. Littlejohn to purchase the property, as stated in the foregoing petition, for the sum of seventeen thousand dollars in money, free and clear of all incumbrances. And it is further ordered that, on the payment of said sum, the said assignee execute, acknowledge, and deliver, to said Newton M. Littlejohn, his heirs, or assigns, any and all deeds and writings necessary and proper to carry out the said offer; and, upon the payment of the said sum of seventeen thousand dollars, and the execution and delivery of all necessary papers, writings, deeds, or conveyances, the said assignee forthwith and immediately deliver to said N. M. Littlejohn the possession and control of all the property referred to in the contract, heretofore referred to in the foregoing petition, and hereby ordered to be sold; and, on the terms and...