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eration to be binding. A consideration to support a promise, not in writing, to pay the debt of another must be of a peculiar character, and must operate to the advantage of the promisor, and place him under a pecuniary obligation to the promisee independent of the original debt, which obligation is to be discharged by the payment of that debt: Ackley v. Parmenter, 98 N. Y. 425; 50 Am. Rep. 693; Cross v. 446 Richardson, 30 Vt. 641. Almond's debt to the plaintiff was not discharged by this promise, but remained in force.
STATUTE OF FRAUDS-PROMISE TO PAY DEBT OF ANOTHER-FORBRABANCE AS CONSIDERATION.—A verbal promise to pay the debt of another, given in consideration of a forbearance to attach the property of the debtor, to which neither the promisor nor the creditor has any right, lien, or title, is void under the statute of frauds: Stewart v. Jerome, 71 Mich. 201; 15 Am. St. Rep. 252, and note. An oral promiso by a third person to pay accruing rent, if the landlord will forbear the eviction of the tenant for a certain period, is within the statute of frauds, and void as a mere promise to pay the debt of the tenant: Riegelman v. Focht, 141 Pa. St. 380; 23 Am. St. Rep. 293, and note; and so is a promise to pay the debt of another in consideration of the plaintiff's forbearing to proceed on his execution: Durham v. Arledge, 1 Strob. 5; 47 Am. Dec. 544, and note; and likewise with a promise to pay a judgınent against another if the creditor would extend a certain forbearance to the debtor: Allshouse v. Ramsay, 6 Whart. 331; 37 Am. Dec. 417.
STATUTE OF FRAUDS-PROMISE TO PAY DEBT OF ANOTHER-SUFFICIENCY or CONSIDERATION.-If the leading object of a party who promises to pay the debt of another is to promote his own interests, such promise, if made on a sufficient consideration, is valid, though not in writing: Joseph v. Smith, 39 Neb. 259; 42 Am. St. Rep. 571, and note. A verbal promise to pay the debt of another is within the statute of frauds, unless it is in effect substituted for the original liability: Brant v. Johnson, 46 Kan. 389. This subject is fully discussed in the extended note to Packer v. Benton, 95 Am. Dec. 251.
ALLEN V. HIGGINS.
[9 WASHINGTON, 446.) EJEOTMENT—PLEADING—Prima FACIE CASE. -Under a statute requiring
the defendant in ejectment to plead the estate or license, under which he holds possession, an answer by way of general denial creates no issue under which evidence of his title is admissible, and, if the plaintiff pleads and proves any legal title to the premises, he thereby establishes
a prima facie case. COTENANCY-EJECTMENT AGAINST STRANGER.-A tenant in common is, as
against every person but his cotenant, entitled to the possession of every part of the common land, and may recover such possession in an action of ejectinent brought against a stranger to the common titlo. John P. Judson, for the appellant. B. Sheeks and C. H. Dillon, for the respondent.
446 DUNBAR, C. J. This is an action of ejectment. The complaint alleged that the plaintiffs were the owners, seised in fee and entitled to the possession of the tract of land in dispute; that while they were such owners, and so seised and possessed, and entitled to the possession, defendant, without right, entered into and upon the same, thereby oust. ing and ejecting plaintiffs therefrom, and continued to 447 with hold possession therefrom; alleged the damages, value of the rents, profits, etc. The answer was a general denial. The plaintiffs claimed title from two sources, one as the successors of the interest of George Luviney, and the other by conveyance from the “Workingmen's Joint Stock Association." Defendant did not offer any evidence. The question therefore, is, Did plaintiffs make a prima facie case?
Appellant contends that a general denial puts in issue every material allegation contained in the complaint, and that under such denial plaintiffs must prove every fact essential to recovery, and defendant may prove any facts which defeat plaintiffs' right to recover. Under the provisions of our Code of Procedure, section 532, in an ejectment proceeding, “the defendant shall not be allowed to give in evidence any estate in himself or another in the property, or any license or right to the possession thereof, unless the same be pleaded in his answer"; and “if so pleaded, the nature and duration of such estate, or license, or right to the possession shall be set forth with the certainty and particularity required in a complaint.” Consequently, the testimony offered in this case was inadmissible under the pleadings in this
case by defendant to defeat the rights of the plaintiffs. The defendant in this action, then, so far as the pleading or the proof is concerned, was a trespasser without any right whatever, and if plaintiffs had any legal right at all it was a superior right.
It had been decreed by the probate court that the premises described in the complaint escheated to the state. This de cision of the probate court was set aside by the superior court of the state. Afterward partition proceedings were instituted in the United States circuit court, the result of which, it seems to us, was to settle this case in favor of the respondents' contention. In that proceeding the respondent Allen, three of the original grantees, D. B. 448 Hannah, ad. ministrator of the estate of George Luviney, deceased, and all persons claiming as purchasers from the fourteen grantors were made parties, and even if there was a break in the title of the grantors all the parties in interest were before the United States court, and were bound by the decree which was made whereby the property was partitioned between the tenants in common, and whereby the Luviney interest was set off and decreed to respondent Allen. And we think the contention of the respondents is correct, that, even if all the parties were not before the court, still there were three of them, and the plaintiff Allen became by said decree a tenant in common with said grantees. If this be true, then a tenant in common is, as against every person but his cotenant, entitled to the possession of every part of the common land, and may recover the possession of all such land in an action of ejectment brought against a stranger to the common title: Freeman on Cotenancy and Partition, 2d ed., sec. 343; Touchard v. Crow, 20 Cal. 150; 81 Am. Dec. 108; Williams v. Sutton, 43 Cal. 65.
The proceeding against the state in which the title was de creed to be in the respondent Allen was a proceeding in rem, and the decree, being in rem, was conclusive and binding upon the defendant: Ryan v. Fergusson, 3 Wash. 356.
The judgment will be affirmed.
EJECTMENT-THE PLEA OR ANSWER.-In ejectment the defendant need not het up title in himself: it is involved in his denial of plaintiff's right. But, if he wishes to avail himself of facts not amounting to such denial, he must plead them: Nelson v. Brodhack, 44 Mo. 596; 100 Am. Dec. 328. Facts sui. ticient to compel a conveyance of the patentee's title held in trust for
another, and relied upon as a defense in ejectment, must be set up in the answer: Curman v. Johnson, 20 Mo. 108; 61 Am. Dec. 593. General issue only can be pleaded in ejectinent under the Illinois Revised Statutes, but the same matter may be given ju evidence thereunder as in the commonlaw action of ejectment, except proofs of certain fictitious matters which are abolished: Warren v. President etc., 15 Ill. 236; 58 Am. Dec. 610. The general issue in ejectment puts plaintiff on proof of a valid legal title; other. wise the defendant's possession is prima facie evidence of title in him: Pratt v. Phillips, 1 Sneed, 543; 60 Am. Dec. 162. In ejectment, where the an. swer contains a simple denial of the allegations in the complaint, the defendants cannot introduce in evidence the copy of the record of a former recovery: Piercy v. Sabin, 10 Cal. 22; 70 Am. Dec. 692.
COTENANCY.–EJECTMENT BY ONE COTENANT against the holder of an ad. verse title or trespasser, to recover the whole property without joining his cotenants: See King v. Hyatt, 51 Kan. 504; 37 Am. St. Rep. 304, and noto, with the cases collected.
MARX V. PARKER.
(9 WASHINGTON, 473.) GARNISHMENT — INTERVENTION. – Although a bank summoned as a gar.
nishee sets up that it has an account with the judgment debtor as a depositor, but that the money thus on deposit belongs to a city having been collected by the judgment defendant in his official capacity as marshal of such city, and held by the bank as such, it is error for the
court, of its own motion, to require the city to appear as an intervenor. GARNISHMENT—WHEN NOT MAINTAINABLE. --- A plaintiff in garnishment
can obtain no greater beneficial relief against the garnishee than the judgment debtor is entitled to; and, if the debtor's recovery is limited to a mere legal title, without beneficial interest or right of enjoyment
in himself, the proceeding must fail. GARNISHMENT OF TRUST FONDS.-A judgment creditor cannot havo his
debt satisfied out of property held in trust for another, no matter how completely his debtor may have exercised apparent ownership over it,
unless it was upon the faith of such ownership that the credit was given. GARNISHMENT OF Trust Fundg.—Moneys belonging in equity to a city,
but deposited in bank by one of the city's officers in his individual name, cannot be garnished in a suit against him by his individual
creditors. GARNISHMENT OF Trust Funds. — A public officer of a city, though ro.
quired to give bond for the proper payment of moneys coming into his hands officially, is a bailee and not a mere debtor of the city, and, although he deposits such moneys in bank in his individual name, they cannot be garnished at the suit of his individual creditors. A. Sherman and Kerr & McCord, for the appellante. Alexander & Alexander, for the respondents.
474 STILES, J. Marx & Jorgenson having obtained a judgment for money against W. S. Parker, summoned the First
An. BT. REP., VOL. XLIII. -54
National Bank of Fairhaven as a garnishee. The bank answered that it had an account with Parker as a depositor, wherein he was credited with eight hundred and forty-five dollars and fourteen cents; but it alleged that the money deposited was money of the city of Fairhaven, which Parker, as marshal of that city, had collected in his official capacity, and this fact, at the hearing, it established to a moral cer. tainty. The account was kept in the individual name of Parker, but it was understood that none but city money would be deposited in that account, and that none but checks in favor of the city treasurer would be drawn against it. Still, it was in no sense a special deposit, but the money was used by the bank for its own purposes, with the understanding that it would be required at the expiration of each month, when the statute required the marshal to settle with the treasurer: Gen. Stats., sec. 655.
It was error for the court, of its own motion, to require the city of Fairhaven to appear as an intervenor. It would have neither gained nor lost by the result of the proceeding: Horn v. Volcano Water Co., 13 Cal. 62; 73 Am. Dec. 569.
It was a proper case for an interpleader on the motion of the bank under the Code of Procedure, section 152; but no buch motion was made. Therefore the city must go out of the case,
any event. 475 The disposition of this case depends upon the settlement of two questions: 1. What were the rights of responde ents as plaintiffs in the garnishment proceeding? 2. What relation did Parker, as marshal, bear to the city of Fairhaven touching the money collected by him and deposited with the bank?
1. It is a general rule in garnishment that the plaintiff can obtain no greater beneficial relief against the garnishee thau the judgment debtor would be entitled to, and that, if the debtor's recovery would be limited to a mere legal title, with. out beneficial interest or right of enjoyment in himself, the proceeding must fail. A judgment creditor cannot bave his debt satisfied out of property held in trust for another, no matter how completely his debtor may have exercised apparent ownership over it, unless it was upon the faith of such ownership that the credit was given: Wade on Attachment, Bec. 416; Morrill v. Raymond, 28 Kan. 415; 42 Am. Rep. 167; Farmers' etc. Bank v. King, 57 Pa. St. 202; 98 Am. Dec. 215.
Therefore, if the deposit in the bank was, in equity, the