Edmonston v. McLoud

19 Barb. 356, 1855 N.Y. App. Div. LEXIS 8

• Court: New York Supreme Court
• Decided: March 5, 1855
• Status: Published

Opinion

By the Court,

Welles, J.

• The finding of the referee appears to be founded, in part at least, upon the assumption that the effect of the order of the county judge, of December 2, ■ 1850, was to create an equitable lien in favor of the plaintiff upon a supposed indebtedness of McLoud to Stiney, which lien still continues and may be enforced in this action. Tha( order required Stiney to appear before the judge and make answer and discovery concerning his property, and enjoined him from receiving, &c. any money, choses in action, evidences of debt or other property not exempt from execution, belonging to him. The order, we think, did not have the operation attributed to it, for several reasons.

1. At the time it was made and served it does not appear that McLoud was indebted to Stiney. There was then, only an open executory contract existing between them, by which McLoud would become entitled to possession of the house and acre of land, upon payment of three hundred dollars. It provided, that Stiney or his wife should keep possession, until McLoud should pay the three hundred dollars, which he agreed to pay on taking possession. It is quite clear that McLoud could not be called upon to pay the $300, until he took possession, and that it was at his election when to take possession.

2. Ho debt has since been created by McLoud to Stiney. The contract of the 31st of October, 1850, was merged in the transaction of the 30th of December of that year, which was executed and complete, and created no indebtedness either in favor of McLoud or Stiney. McLoud had the right to demand possession of the house and acre of land on payment by him of the $300. He was not restrained from doing this by any order, and was not bound to wait the result of the proceedings against Stiney before the county judge. If the effect of Mrs. Stiney’s delivering the possession and receiving the $60, and the deed to her husband for eighty acres of land in Michigan, was to involve Stiney in contempt for disobedience of the injunction order, it is not perceived how it would, therefore, invalidate the transaction as it respected McLoud, or affect his rights in any way. He was not bound by the injunction, though served upon him; because he was not a party to it nor to the proceeding in which it was issued, and it was not directed to him. Its utmost effect upon him was as a notice. If he decided to avail himself of his right to possession of the house, &c. there was no one to whom he could make payment of the $300 but Stiney or some one authorized by him, and this right he could not be deprived of in proceedings to which he was not a party.

3. The case does not show that any further order was ever made against Stiney in the proceedings before the judge, except that an attachment was issued against him for not appearing, &c. which has never been served. The proceedings against him seem to have been suspended, and new proceedings instituted against McLoud under § 294 of the code, which appear to have ended with his examination on oath, before the judge, without any order having been made in respect to him or his alleged indebtedness to Stiney.

4. But assuming that a lien was created by the order of the county judge of the 2d of December, 1850, how can the plaintiff avail himself of it ? Clearly, as it seems to us, not in this action, in any way, but only in the way pointed out in the code. Chapter 2, of art. 9, of part 2 of the code, embracing §§ 292 to 302 inclusive, contains all the provisions on the subject. They are intended tobe complete, and to afford a judgment creditor instituting proceedings under them, the full benefit, and to put him in possession of all his rights,'which the chapter recognizes, creates or regulates. The provisions were unknown before the code. By § 297, the judge may order any property of the judgment debtor, not exempt from execution, in the hands of himself or any other person, or due to the judgment debtor, to be applied towards the satisfaction of the judgment, &c. and by § 298, he may also appoint a receiver, &c. Section 299 in effect declares, that no recovery shall be had against a person alleged to be in debt to the judgment debtor, where the indebtedness is denied, except in an action by the receiver. To carry out this provision, it is clear that proceedings must be had, in which the person alleged to be indebted to the judgment debtor is a party, under § 294, in order that he may have an opportunity to deny his indebtedness. The proceeding in this case before the county judge, against McLoud, was not until after he had made the payment and taken full possession of the premises ; and it is believed that no -one will contend, that after his examination, the judge would have had the power to order him to pay the $300 to the plaintiff, or to make any other order, except for the appointment of a receiver. (The People, ex rel. Williams, v. Hulburt, 5 How. Pr. R. 446.) If a receiver had then been appointed by the judge and an action brought by him against McLoud, .for these moneys, the question whether the payment to Stiney or his wife was a good payment, would have been properly triable in that action. It would have been in substance a continuation of the proceedings instituted before the judge, or at least the carrying out of those proceedings under the provisions of the code. But all the proceedings taken before the .judge have been practically abandoned, and with the lien, if any ever attached, have fallen to the ground. This action must therefore be decided the same as if no such proceedings were ever had, excepting that, perhaps, they may be resorted to for the purpose of showing notice of certain facts to the defendant McLoud.

This action was commenced September 30, 1851, just nine months after the payment made by McLoud to Mrs. Stiney, and the giving up of the possession of the house and acre of land, by the latter to the former, by which the transactions between Stiney and McLoud in relation to the land were executed and closed. What has McLoud done to involve him in the liability to pay the $300 or $9.15 a second time ? At the time he purchased of Stiney the contract with Woods, and entered into the contract with Stiney, respecting the possession of the house, one acre of land, <fcc. the plaintiff had not obtained his judgment, and McLoud testified, on his examination before the judge, that at that time he did not know of any indebtedness on the part of Stiney to the plaintiff, or that an action had been commenced by the plaintiff against Stiney, and it is not proved that he did then know or had notice of either.

By the latter contract, McLoud became vested with certain rights which have been before considered, and which, as we think the case shows, he has legitimately exercised. That he had notice, after his contract with Stiney was entered into, of the plaintiff’s judgment, and of the wishes and design of the plaintiff to get hold of Stiney’s interest in that contract, did not affect his right to .settle with, and pay Stiney, unless restrained from doing so, by some legal process. There is no principle of law or rule of equity which required him to make payment to the plaintiff in preference to Stiney. There is no pretense for requiring him to pay the plaintiff the $9.15 which he has already paid to Stiney. It was money which he had agreed with a debtor of Stiney to pay to him. McLoud denies any indebtedness to Stiney, and in no aspect of the case can there be a recovery against him except by action in the name of a receiver, where he can claim as a right a trial by jury.

[Monroe General Term, March 5, 1855.

Johnson, Welles and T. R. Strong, Justices.]

But we are of the opinion that the case fails to show a right of recovery against McLoud in any view whatever.

The judgment should be reversed, and the complaint dismissed as to McLoud, with costs.