State Bank of Stratford v. Young
| Decision Date | 15 March 1913 |
| Citation | 140 N.W. 376,159 Iowa 375 |
| Parties | THE STATE BANK OF STRATFORD, Appellee, v. J. E. YOUNG and J. C. YOUNG, defendants, J. H. JOHNSON, Garnishee, Appellant |
| Court | Iowa Supreme Court |
Appeal from Hamilton District Court.--HON. C. G. LEE, Judge.
ACTION by attachment against the defendants, J. E. Young and J. C Young, in which the appellant, J. H. Johnson, was attached as garnishee. Trial to a jury, verdict for plaintiff, upon which judgment was entered against the garnishee for $ 1,136.40 and costs. The garnishee appeals.
Affirmed.
Wesley Martin, for appellant.
J. L Kamrar and E. Prince, for appellee.
The suit against the defendants, Young, was on promissory notes. A writ of attachment was issued, and certain real estate was levied upon. The land levied upon was sold by defendants, Young, to Johnson, the garnishee, and the deed made before the levy. Under the writ, the garnishee, Johnson, was summoned as a supposed debtor of the defendants, Young. The garnishee answered that he purchased two hundred and five acres of land of defendants, and that the deed had been delivered to him and embraced all the land purchased; that the indebtedness to the garnishee, together with $ 150 cash paid, constituted the purchase price; and that he was not indebted at the time of taking the answer, or at the time of the garnishment.
Plaintiff filed a pleading controverting the answer of the garnishee, stating, in substance: (1) That it denies the correctness of the answer, and denies that defendant is not indebted to the plaintiff. (2) That the garnishee, Johnson, entered into a contract with the principal defendants to purchase their farm of two hundred and five acres at the agreed price of $ 35 per acre and the aggregate price of $ 7,175, which sum was to be paid by the garnishee as follows: $ 500 cash, and assume certain liens thereon, and to pay plaintiff's claim and about $ 800 that the defendants owed to the garnishee, and the balance in cash to be paid to the said Youngs when deed was made and delivered. That the contract between defendants and Johnson was reduced to writing by one Neese at the request of the said Youngs and Johnson. That during the negotiations and the preparation of said writing plaintiff's claim was talked about, and it was agreed that the said claim of plaintiff should be paid out of the purchase money for said farm, to all of which the garnishee assented and agreed. That the said writing was taken by the garnishee after the same had been read over, but was not then signed. That afterwards said Young and the garnishee, for the purpose and with the intent to defraud the plaintiff out of its claim, undertook to make a new bargain for the said farm, and to increase the indebtedness which the garnishee held against the Youngs from $ 800 to $ 1,860, which amount the garnishee now claims he should have out of the purchase price, when in truth and in fact he was only entitled to about $ 800, due the garnishee from the Youngs, and that there is now due a large amount of money from the garnishee on the purchase price of the land. That no money was paid to the said Youngs by the said Johnson, and he is now indebted for the entire purchase price of the farm. That the plaintiff relied upon the agreement of the garnishee to pay its claim out of the purchase money. That the garnishee was secretly and fraudulently conspiring with the said Youngs to defeat their claim by getting the title to the said land in his name. That, but for the agreement, plaintiff could and would have taken steps to secure its claim. That by reason of such facts the garnishee is estopped from saying that he does not owe defendants, and is estopped from refusing to pay plaintiff's claim.
Later, and during the trial, plaintiff amended its pleading, in which its states: The plaintiff claims for two hundred and thirteen acres of land, at $ 35 per acre, amounting to the aggregate sum of $ 7,455, it appearing by the evidence that the land was sold to garnishee for $ 35 per acre, the number of acres being agreed upon as two hundred and thirteen, and plaintiff claims there was $ 1,200 due from the garnishee to the defendants at the time of the garnishment. Wherefore plaintiff asks judgment against the garnishee for $ 1,200, with interest at 6 per cent., and costs.
The garnishee moved to strike the second division of plaintiff's pleading because redundant and immaterial, and because it forms no basis for the issue upon the answer of the garnishee, and because the only question is whether the garnishee is indebted to the principal defendants in any sum, and that an agreement between the garnishee and the plaintiff, if one existed, cannot be alleged in this proceeding. There was no ruling on this motion.
The garnishee answered plaintiff's pleading, stating, in substance, that he denies all allegations therein not admitted, admits the purchase of certain lands from defendants, but avers that the purchase of said lands was pursuant to contract, and that payment therefor was concurrent with the purchase; that the lands purchased were heavily mortgaged and otherwise incumbered, and that the assumption and payment of the mortgages and incumbrances constituted a part of the purchase price, while notes and accounts held by the garnishee against the defendants and $ 150 cash constituted the remainder of such payment; that nothing was due defendants from this garnishee, but, on the contrary, defendants were then and are now indebted to him; that the plaintiff caused the lands purchased to be attached as the property of the said defendants; that by reason of such attachment the plaintiff elected to treat the said lands as the lands of defendants; that plaintiff cannot now maintain that the garnishee is liable for the purchase price; that by such election the said plaintiff is estopped from pursuing the garnishee in this action.
I. Appellant makes the point in argument that the answer of the garnishee was not taken in the case at bar, but was taken in another and different case, and that there was nothing upon which to support an issue, and no valid judgment could be entered against the garnishee, and cites cases in support of his position. This is one of the controversies between counsel as to the state of the record. Appellant's abstract recites that the answer of the garnishee was taken by the commissioner, not in the case at bar, but in the case of Snell v. Young, but transcribed as though taken in the case at bar. The appellee says that the answers were taken in this case.
Turning to the original files which have been certified, we find attached to the pleadings in this case a paper entitled as follows: Then follows the examination of the witness, certified to by the commissioner as having been taken in this case, and marked filed in this case by the clerk. Notice was served on the garnishee, he appeared, and the case was tried on issues tendered by the pleadings. It would seem as though there was no merit in appellant's contention at this point.
II. The appellant's first contention, as he states it, is that the attachment of the property purchased by the garnishee as the property of the debtor is inconsistent with the garnishment of the purchaser as a supposed debtor of the vendor of the property, and such attachment is an election to hold the property instead of the debt due for the property, and releases the garnishee, and in support of his claim cites Lawrence v. McKenzie, 88 Iowa 432, 55 N.W. 505. That was a contest between creditors as to which had the prior claim to personal property, in which case it was held that the plaintiff, by causing the debtors of the defendant to be garnished, waived all his rights under an assignment. The plaintiff was in possession of the property, which consisted of book accounts. The court held that the plaintiff's claim under his garnishment was inconsistent with his claim by virtue of the assignment, and that one in possession of personal property, and claiming a lien thereon, or title thereto, cannot attach the property for the same debt and still maintain his prior lien or claim. The effect of the holding there was that having waived the lien, or his claim of title, by reason of the assignment, the rights of the parties should be determined under the garnishment proceedings alone. So that, instead of being an election to hold the property rather than the debt due for the property, as counsel for appellant contends, it was in reality an election to determine the rights of the parties under the garnishment proceedings. That is what was done in this case, and it was tried on that theory. The question as to the property itself, the land, or any lien thereon, or claim thereto, was not put in issue. Plaintiff's idea in levying on the land and attaching Johnson as garnishee was, no doubt, to secure its claim as against Young and to proceed in equity to set aside the deeds, if it should conclude that the sale itself was fraudulent; but, if it concluded there was in fact a sale of the land, it would then hold the proceeds, if any, in the hands of the purchaser under the garnishment. The bank made no further claim under the levy on the land, and by proceeding under the garnishment abandoned and waived its rights, if it had any, by the levy on the land. If plaintiff had proceeded to sell this land under execution, or under the attachment levy, it would have been a different matter.
If there was any election by the plaintiff bank in this case, it was to proceed...
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