Ward v. Whitfield

Decision Date09 May 1887
Citation2 So. 493,64 Miss. 754
CourtMississippi Supreme Court

April 1887

APPEAL from the Chancery Court of Monroe County HON. BAXTER MCFARLAND, Chancellor.

The case is sufficiently stated in the opinion of the court.


Houston & Reynolds and Sykes & Bristow, for the appellant.

1. The object of this bill is not to subject a decree in which Anne Ward has an interest, a mere right or chose in action, but fire hundred and seventy-five dollars in actual "money" belonging to Mrs. Ward in the sheriff's hands. In the case of Whitfield v. Ward et al., MS. opinion the only thing the sheriff had was an execution on a decree--a mere right in action. On July 5, 1886, that chose in action became a chose in possession. It was legal assets subject both to execution and garnishment, when the bill in the case at bar was filed, and by the easiest process in the world could have been subjected if liable to complainant's judgment. The bill, it is true, does state that the money was levied on (showing that counsel for complainant recognized the necessity of exhausting legal remedies), but the record referred to as part of the bill in this cause shows that no levy was ever made. But even if there was a levy, and it proved fruitless, there remained garnishment--an exclusively legal remedy. Folker v Hayden, 7 Cush. 125; Echols v. Hammond, 1 George 177; Freeman v. Guion, 11 S. & M. 58.

Complainant must exhaust her legal remedies.

2. Complainant's counsel argued in the case below, and the Chancellor plainly intimated in his opinion, that an averment of the insolvency of the judgment-debtor was sufficient to give chancery jurisdiction. Neither counsel nor Chancellor made the distinction between cases where the complainant's demand is a legal one, and the bill is filed to subject equitable assets to its satisfaction, and cases where the demand is equitable, or where equity has jurisdiction in the first place, as in case of trust, fraud etc. Every case cited by counsel for complainant was of the latter character. If there is one question that is settled everywhere (except where changed by statute) it is that to subject equitable assets, like choses in action, to a legal claim, the claim must be reduced to judgment, fi. fa. issued, and returned nulla bona. The legal remedy must be completely exhausted. Whitfield v. Ward, Opinion Book; Farned v. Harris, 11 S. & M. 366; Hilzheim v. Drane, 10 Ib. 556; Brown v. Bank, 31 Miss. 454; Darcy v. Lake, 46 Ib. 109; Porter v. Matthews, 53 Ib. 141; Fleming v. Grafton, 54 Ib. 79; Pulliam v. Taylor, 50 Ib. 551; Irwin v. Lewis, 50 Ib. 363; Prewitt v. Land, 36 Ib. 495; Heirs v. Kimball, 58 Am. Dec. 638; Perry v. Hixon, 1 Hill S. C. Ch. 229; Scriven v. Botswick, 2 McCord 415; Kennedy v. Simons, Dudley Ch. 144; Brinkerhoff v. Brown, 4 Johns. Ch. 675; McDermot v. Strong, 4 Ib. 691; Spencer v. Cuyler, 17 How. N.Y. 157; Spencer v. Cuyler, 9 Abb. 352; Bull v. Clark, 2 Met. 587, 8 B. Monroe 229.

And to exhaust the legal remedy by a fi. fa. the return of nulla bona cannot be made before the last return-day--in other words, the sheriff must hold the writ as long as he can, lest peradventure, even at the last moment, the resort to equity may be avoided by finding some legal assets. Beck v. Burditt, 1 Paige 305; Cassidy v. Mecham, 3 Ib. 311; Williams v. Hogeboom, 8 Ib. 469; Williams v. Hubbard, 1 Mich. 446; Thayer v. Swift, Harr. Mich. Ch. 429; Stewart v. Stephens, Ib. 169; Williams v. Hubbard, Walk. Mich. Ch. 28; Smith v. Thompson, Ib. 1; Beach v. Thompson, Ib. 495; Gould v. Tryon, Ib. 353; Drillon v. Rush, 27 Mo. 243; Roper v. McCook, 7 Ala. 318; Gordon v. Levell, 21 Maine 251.

We specially commend to the court the reasoning of the court in Smith v. Thompson, Walk. Ch. 3 and 4.

It is simply unanswerable.

Clifton & Eckford, for the appellee.

1. As appellee charges in her bill that defendant is hopelessly insolvent, that upon her judgment execution was issued returned nulla bona, that she has exhausted her remedy at law, she has a right to come into a court of equity upon this state of facts if she has no other equity in her bill. Whitfield v. Ward, MS. opinion.

2. To entitle a creditor to file his bill it is not necessary that the sheriff should have held up execution until return-day. The most required is that the bill be not filed until after the return-day. Appellee did not file her bill until nearly two years after. The authorities cited by appellant do not sustain his position. The case cited by him of Williams v. Hogeboom, 8 Paige 469, decides that it matters not if the execution was returned before return-day if the bill was not filed until after the return-day. In Platt v. Caldwell, 9 Paige 386, the court say after the return-day complainant has a right to think his remedy at law exhausted and to file his bill. We are sustained in this position by the following authorities: Williams v. Hogeboom, 8 Paige 469; Platt v. Caldwell, 9 Paige 386; Forbes v. Waller, 25 N.Y. 436; Renard v. O'Brien, 35 N.Y. 102; Bowen v. Parkhurst, 24 Ill. 260; Bump on Fraud Con. 514, note 3; Tapp v. Bond, 57 Miss. 281; Murfree on Sheriffs, §§ 868, note 3, and 865.

The Michigan reports seem to be the only ones holding the converse.

Justice George held in the case of Tapp v. Bond that no good purpose could be subserved by the sheriff holding the execution when he had ascertained that the money could not be made. This case is a notable example. It is a matter of record that since 1878 there have been and are now judgments against Anne Ward amounting to over two thousand five hundred dollars unsatisfied with executions of returns of nulla bona, and that she has been for ten years past and is now notoriously and hopelessly insolvent, and that all her creditors but appellee have abandoned efforts to collect their debts. Then why the necessity of holding up the execution until a return-day?

Q. O. Eckford, of counsel for the appellee, argued the case orally.

Calhoon & Green, on the same side.

It is true that in 1842 a Michigan chancellor held that a judgment creditor could not go into equity to reach equitable assets on a nulla bona return until after return-day. But in that case, Smith v. Thompson, Walk. Chy. 1, there appeared no special danger in waiting. Here there is ruin in waiting, and we say that equity will intervene to prevent the irreparable injury of delay.

It would require the decision of at least two hundred chancellors to convince our unlearned minds that we ought not to have relief in equity at any moment that we ascertain through the sheriff that there is then nothing on which he could levy, and two thousand to convince us that in such case, and where we show additionally that there is the purpose to defraud us, and additionally, also, that we must at last get into equity to ascertain the leviable interest of our debtor in a fraud by accounting, and additionally, also, that unless equity aids us we will be utterly defeated from ever collecting our debt, that chancery will close its doors against us because of the possibility that by return-day the debtor might, but against all human reason, have something to levy on.

If we are wrong in this we shall remain wrong until we die, so steeped in ignorance that light cannot break in on us.

See Parish v. Lewis, Freeman Chy. Rep. 306, in which case the court says:

"If you wish to reach the legal assets of your debtor and to remove obstacles which obstruct your course at law, it is sufficient that you show a judgment creating a lien upon those assets, but if you wish to reach equitable assets or other things not subject to execution at law you must show that you have exhausted your remedies at law by a return of an execution unsatisfied as the foundation of your right to come into this court."

Some courts have held that an allegation of insolvency is enough. 3 Com. Eq. 464, note 4, and this would seem reasonable. That is the thing to find out at last, and if it is a fact why wait until a sheriff says so?

Whether the money belongs to the class of either legal or equitable assets we wish...

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