Snyder v. Murdock

• Decision Date: 01 July 1903
• Docket Number: 1422
• Citation: 73 P. 22,26 Utah 233
• Court: Utah Supreme Court
• Parties: W. I. SNYDER, as Assignee for the Benefit of Creditors of RASBAND BROTHERS, Appellant, v. JAMES S. MURDOCK, as Sheriff of Wasatch County, JAMES W. CLYDE, ALVA M. MURDOCK and WILLIAM G. RASBAND, as Administrator of the Estate of THOMAS RASBAND, Deceased, and ELIZABETH RASBAND, Respondents

73 P. 22

26 Utah 233

W. I. SNYDER, as Assignee for the Benefit of Creditors of RASBAND BROTHERS, Appellant, v. JAMES S. MURDOCK, as Sheriff of Wasatch County, JAMES W. CLYDE, ALVA M. MURDOCK and WILLIAM G. RASBAND, as Administrator of the Estate of THOMAS RASBAND, Deceased, and ELIZABETH RASBAND, Respondents

No. 1422

Supreme Court of Utah

July 1, 1903

Appeal from the Fourth District Court, Wasatch County,--Hon. J. E Booth, Judge.

Action to recover certain real estate alleged to be the property of the Rasbands as heirs at law of their father. From a decree in favor of the defendants, the plaintiff appealed.

AFFIRMED.

Messrs Snyder, Westervelt, Snyder & Wight for appellant.

A. C Hatch, Esq., and Messrs. Rawlins, Thurman Hurd & Wedgwood for respondents.

HART, District Judge. BASKIN, C. J., and BARTCH, J., concur.

OPINION

HART, District Judge.

STATEMENT OF FACTS.

This cause was decided by this court on demurrer to amended complaint, as reported in 20 Utah 407, 59 P. 88. The substance of said complaint is there given, and need not be restated here. After said judgment on appeal, defendants James S. Murdock and James W. Clyde made answer, admitting many allegations of the complaint, but putting in issue, among other matters, the conveyance to the plaintiff by the said deed of assignment of the real estate in Wasatch county which the Rasband brothers, Frederick, Heber, and James, inherited respectively from the estate of their father, Thomas Rasband. If this property was exempt to the Rasband brothers, then the same came within the exemption of the grant in said deed of assignment. Other issues and defenses raised by the answer of said defendants are indicated by the findings of the court, which are, in brief, as follows:

That Rasband Bros. executed to plaintiff the deed of assignment; that the same was recorded as alleged in the amended complaint, and that plaintiff duly qualified as assignee, gave notice to the creditors by publication as alleged, and that the court extended indefinitely the time for winding up the affairs of said assignment; that Thomas Rasband, father of the Rasband brothers, died at the time and place alleged, and that on June 16, 1898, Wm. G. Rasband was duly appointed administrator of the estate of said deceased, and duly qualified as such; that the defendant James S. Murdock was the qualified and acting sheriff of Wasatch county, Utah and that defendants James W. Clyde and Alva M. Murdock were judgment creditors of the Rasband Bros.; that on the 15th of December, 1897, said creditors, Clyde and Murdock, each commenced an action on promissory notes against the Rasband Bros., and sued out writs of attachment, which were levied upon the property described in the complaint, the same being the interest which the Rasband brothers had in the estate of their deceased father; that neither of said defendants Clyde and Alva M. Murdock were named in the deed of assignment as creditors; that Rasband Bros. had a substantial interest in said estate, liable in execution for the satisfaction of any judgment said defendants might obtain against them; that judgments were duly entered in their favor against Rasband Bros., and their interests in said property duly levied upon by the sheriff, James S. Murdock, who, on October 22, 1898, duly sold the same to defendant Clyde, and issued to him a sheriff's certificate and deed therefor; that said Rasband Bros., by their deed of assignment, did not intend to grant and convey any of their interests in said property, but purposely omitted the same from the schedule accompanying the assignment, and intended to reserve said property for their benefit, knowing at the time that the indebtedness of Clyde and Alva M. Murdock had not been paid, and that no provision had been made for the payment of same; that the interest of Rasband Bros. in said property was and is exempt from execution, and was not included nor intended to be included in the deed of assignment; that on January 28, 1898 after the deed of assignment had been executed, plaintiff herein appeared in said suit of Clyde and Murdock v. Rasband Bros., and on behalf of Rasband Bros., as their attorney, moved the court to discharge the writ of attachment above referred to, and at said time had full knowledge of the facts and conditions relating to the title of said property, including his own portion, if any, as assignee; that the judgment in the case last above mentioned was made upon the merits against said Rasband Bros. on August 8, 1898; that on August 1, 1899, after the commencement of the action herein, and before issue joined therein in the matter of the estate of Thomas Rasband pending in this court, upon the petition of said administrator, a decree of distribution of the property involved in this action was duly given and entered, by the terms of which all of the right, title, and interest that Rasband Bros. had in said premises was distributed to defendant James W. Clyde, and no part thereof was distributed to the plaintiff herein; that said decree was made by the court upon the merits of said cause; that the title and ownership, and claim of title and ownership, of these defendants was involved in said hearing, and was adjudicated against the plaintiff herein, and that of all of said proceedings the plaintiff herein had notice.

From a decree upon such findings in favor of defendants and against the plaintiff, the latter appeals.

HART District Judge (after stating the facts).--It is insisted by plaintiff that if the property in question was not exempt to the Rasband brothers respectively, so as to be subject to levy and sale by the defendants, that then title to the same passed to the plaintiff under the assignment of all the assignor's property, except exempt property. It may be noted that this land was not scheduled, nor in any manner taken possession of by the assignee, the plaintiff. In fact, he appeared as counsel for Rasband Bros. in the attachment proceedings without making claim in himself to the property. The plaintiff likewise appeared as attorney for the administrator of the Rasband estate in the earlier stages of the administration proceedings, but at no time, so far as appears from the evidence, suggested, except to the administrator, that he claimed any interest in the estate by reason of the deed of assignment. The property in litigation was no doubt exempt from execution to the respective members of the so-called Rasband Bros., but in our view of the case it is unnecessary to determine whether they waived their exemption rights, so as to pass title to plaintiff by virtue of the deed of assignment, in...