Lynch v. Johnson
| Citation | 84 S.E.2d 419,196 Va. 516 |
| Decision Date | 22 November 1954 |
| Docket Number | No. 4277,4277 |
| Court | Supreme Court of Virginia |
| Parties | C. R. LYNCH, SR., ET AL, &c. v. OGDEN C. JOHNSON, HARFORD MUTUAL INSURANCE COMPANY, AND WILLIE LYTTON JOHNSON. Record |
Thomas J. Bondurant and A. T. Griffith, for the plaintiffs in error.
Burns & Lively, for the defendants in error.
This is a garnishment proceeding instituted by C. R. Lynch, Sr., C. R. Lynch, Jr. and Hugh M. Lynch, trading as Lynch Motor Company, against Ogden C. Johnson, Judgment debtor, and Harford Mutual Insurance Company, garnishee, for the purpose of subjecting a fund of $4,000.00 held by the insurance company to the payment of their judgment in the sum of $468.00.
In its answer the insurance company admitted that it was holding $4,000.00 which was due and payable under the terms of a policy of fire insurance issued to 'Willie Lytton Johnson, Administratrix of the Estate of W. J. Johnson, and Ogden C. Johnson, as his interest may appear. ' The answer further stated, however, that the insurance company was unable to determine to whom and in what proportions payment of the proceeds of the policy should be made.
Ogden C. Johnson, in his answer, alleged that the Lynch Motor Company was not entitled to maintain this proceeding or to recover any of the proceeds payable on account of the fire which destroyed the house in which he lived, because: 1. the farm and house thereon were held by him and his wife as tenants by the entirety under a deed from his mother, Willie Lytton Johnson, who reserved a life estate for herself and was still living; 2. 'the property conveyed, including the house which was burned, and from which the fund was derived, is expressly conveyed without being liable for the debts of either Respondent or his wife.'
Willie Lytton Johnson, in her petition filed by leave of the trial court, denied the right of Lynch Motor Company to recover any of the fund held by the insurance company, because the proceeds of the fire insurance policy 'constitutes a trust fund to be applied in restoring the home on the property to the use and benefit of Ogden C. Johnson and Maggie H. Johnson, his wife, during their joint lives, and during the life of the survivor of them, and then in fee in remainder to the living children.'
The evidence was heard ore tenus and on September 30, 1953, the trial court held that the Lynch Motor Company was not 'entitled to subject said fund or any part thereof to the credit or payment' of its judgment against Ogden C. Johnson and dismissed the case, to which judgment we granted this writ of error.
No question was raised in the trial court as to the regularity of the judgment on which the execution was issued, nor as to the validity of the execution, and the only issue before us is whether the fund held by the insurance company is subject to garnishment by the judgment creditor of Ogden C. Johnson.
By deed dated January 8, 1948, Willie Lytton Johnson, after reserving a life estate to herself, conveyed a 152 acre tract of land in Russell county to her son, Ogden C. Johnson and Maggie H. Johnson, his wife, 'for and during their natural lives, and the life of the survivor thereof, with remainder in fee' to their children. The deed provided that 'during the life-time of the said Ogden C. Johnson and Maggie H. Johnson or the survivor thereof, this tract of land shall be a home for said parties, viz., Ogden C. Johnson and Maggie H. Johnson, and the same shall not be subject to their debts and obligations. ' The deed also provided that 'in event of the remarriage of Maggie H. Johnson thereupon the interest herein conveyed to her shall cease and determine and same shall vest in the children of the said Ogden C. and Maggie H. Johnson, born to this union.'
In addition to reciting that the conveyance was made 'for and in consideration of the sum of One Dollar ($1.00) and other good and valuable considerations,' the deed provided that Ogden C. Johnson and Maggie H. Johnson 'are to pay all taxes due and payable upon said land during the life' of the grantor, Willie Lytton Johnson. There is undisputed testimony that at the time of the conveyance Ogden C. Johnson and Maggie H. Johnson agreed, as part of the consideration, to pay the grantor annually for the use of her life estate; to pay the insurance premiums necessary to continue in effect the insurance then on the property; and, in case of loss or damage by fire or other causes insured against, to apply the insurance proceeds to the repair or restoration of the property damaged or destroyed; and in the event of their failure to perform their obligations as to the consideration, to surrender to the grantor possession of her life estate.
The property conveyed in the deed was acquired by Willie Lytton Johnson by devise from her husband, W. J. Johnson, and at the date of his death was insured in the sum of $4,000.00 on the dwelling house and $500.00 on the barn. Sometime after the death of W. J. Johnson, the beneficiary in the policy was changed to 'Willie Lytton Johnson, Administratrix of W. J. Johnson. ' Then after the execution of the above deed, the terms and agreements of the conveyance and the arrangements as to the insurance were fully disclosed to an agent of the insurance company, who advised that the name 'Ogden C. Johnson, as his interest may appear' be inserted in the policy, making the policy payable, in event of loss or damage, to 'Willie Lytton Johnson, Administratrix of the Estate of W. J. Johnson, and Ogden C. Johnson, as his interest may appear. ' This was done by the insurance agent, and the policy was continued in that form and the premiums paid by Ogden C. Johnson until the fire destroyed the house on March 2, 1953. The evidence shows that the insurance company and the parties to the conveyance intended and understood that the policy insured the entire value of the house and barn located on the property.
Garnishment is a proceeding which exists only by virtue of statutory enactment. Under our statutes, Code § 8-441 through § 8-449.3, garnishment is the process by which a judgment creditor enforces the lien of his execution against any debt or property due his judgment debtor in the hands of a third person, garnishee.
The word 'garnishment' is derived from the Norman French word 'garnir,' meaning to warn. 38 C.J.S., Garnishment, § 1, p. 200. This, a summons of garnishment under our statutes is a warning to the garnishee not to pay the money or deliver the property of the judgment debtor in his hands, upon penalty that if he does he may subject himself to personal judgment. The proceeding of garnishment is in many respects similar to attachment by levy, but as indicated, differs in at least one particular, that is, the creditor 'does not acquire a clear and full lien upon the specific property in the garnishee's possession, but only such a lien as gives him the right to hold the garnishee personally liable for it or its value. ' Bickle v. Chrisman's Adm'x, 76 Va. 678, 691, 692.
If it appear upon proof or upon confession of the garnishee that he owes the judgment debtor any debt or property, the court 'may give judgment against him for any amount found due the execution debtor, and order him to deliver any estate for which there is such liability, or pay the value of such estate, to any officer whom it may designate. ' Code, § 8-444. However, the garnishee, being a mere stakeholder or custodian of such debt or property, may avoid all personal liability by surrendering to the court for its proper disposition any amount of money or any specific property due the judgment debtor. The court cannot, therefore, enter any order or judgment against the garnishee unless he is found either to be indebted to the judgment debtor, or to have possession of property of such debtor for which debt or property the judgment debtor himself could maintain an action at law. Freitas v. Griffith, 112 Va. 343, 71 S.E. 531; Levine's Loan Office v. Starke, 140 Va. 712, 125 S.E. 683.
Thus, a proceeding in garnishment is substantially an action at law by the judgment debtor in the name of the judgment creditor against the garnishee, and therefore the judgment...
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