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Moore, Jenkins & Company vs. Allen.
53 671 63 790
Moore, JENKINS & COMPANY, plaintiffs in error, vs. A. M.
ALLEN, defendant in error.
1. Only a statutory bond will dissolve a garnishment.
for that reason to deny the plaintiff's motion to enter up judgment on the
ment. 5. Judgment against the plaintiff on such motion will bar any subsequent ac
tion on the bond which depends for success upon holding the bond suffi
cient to dissolve the garnishment. 4. Construing the bond as insufficient to dissolve the garnishment, then, the
condition being to pay the eventual condemnation money so far as the effects and moneys garnished shall be found liable to the plaintiff's demand, there is no breach of the condition until after some judgment has been rendered on the garnishment fixing the amount of these moneys or effects and
finding them liable. (ist Kelly, 72. 5. In an action upon the bond the garnishee's answer, later than the bond, is
not evidence for the plaintiff, no judgment upon the answer being shown which declares the garnishee liable for any amount, or that the moneys or effects admitted to have been in his hands, are subject to the plaintiff's demand,
Garnishment. Bond. Evidence. Before Judge JAMES Johnson. Muscogee Superior Court. May Term, 1875.
Reported in the opinion.
PEABODY & BRANXON, for plaintiffs in error.
INGRAM & CRAWFORD, for defendant.
Defendant in attachment, in order to dissolve garnishment, gave bond with security, the bond being conditioned to pay the eventual condemnation money, so far as the effects and moneys garnished shall be found liable to the plaintiffs' demand. After recovering on the attachment, the plaintiff moved the court to enter up judgment on the bond against principal and security. The court held that the bond did not conform to the statute, and denied the motion. This decision was not excepted to, and was never reversed. The plaintiffs
Fulcher vs. Royal et al.
then brought an action of debt upon the bond against the security alleging a breach of the condition. At the trial, they offered in evidence an answer, admitting assets in a certain amount, made by the garnishee, in the attachment case, after the bond sued upon was executed. The court ruled the answer inadmissible. Defendant (the security) offered as a bar to the action, the record of the prior motion and the judgment of the court thereon. This was admitted, and the court, in effect, held it conclusive. No judgment was shown fixing any liability upon the garnishee, or declaring the moneys or effects in his hands subject to the plaintiffs' demand.
The bond either dissolved the garnishment or it did not. If it did, then the motion to enter judgment upon it should have prevailed : Code, sections 3319, 3540. The denial of that motion was an adjudication that it did not; and if it did not, then the bond, if good at all, was simply a common law bond, and its condition would have to be read accordingly. The condition, it will be seen, is not for the payment of the eventual condemnation money, further than “as the effects and moneys garnished shall be found liable to the plaintiffs demand.” Without a judgment on the garnishment, it cannot be said that the effects or moneys garnished have been found liable to the plaintiffs' demand. What we rule upon the whole case appears in the head-notes.
Mary A. FULCHER, plaintiff in error, vs. JAMES H. ROYAL
et al., executors, defendants in error. 1. Where a claim sets out a deed, and the claim is demurred to, the execu
tion of the deed, including its delivery, is admitted, and the claim case will not be dismissed for want of proper probate to admit the deed to re
cord. 2. A paper containing the following stipulations : “In trust, nevertheless, to
and for the benefit of Mary Ann Fulcher and the heirs of her body, during the natural life of the party of the first part, (Fulcher,) who is to receive ample support with his family, and after his death his wise to enjoy the
Fulcher vs. Royal et al.
same with her children during her natural life. If no children by her present husband at her death, in that case, the party of the second part, (the trustee,) is to take one-half of the said bargained property and equally divide the same between the heirs of Thomas Ogg, Henry Smith and Rayman Hall. The remaining half is to be disposed of as the said Mary Ann Fulcher sees fit to do. Should the said William B. Boyd, of the second part, deem it expedient and advantageous to the party of the first part, to make a sale of the aforesaid tract of land in Richmond county and put the amount to interest, or lay the same out in real estate, he is fully authorized, but the same to continue in possession of the party of the first part, and for their natural support and benefit. But no part or portion of the foregoing to be at the disposal of the aforesaid named Mary Ann Fulcher, and the heirs of her body, during the life of the said party of the first part. And the party of the first part, for himself, his executors, administrators and assigns, warrants the aforesaid property to the party of the second part upon
the trusts and conditions aforesaid,” is a deed, and not a will, 3. It conveys an estate for her own life and the life of the donor, to Mrs.
Fulcher, and in the contingency of her having no children, a remainder of one-half of the estate to her, and the power in her to dispose of the other
half to the parties named in the manner declared. 4. The trustee being dead, and no other having been appointed, she is the
proper party to claim the property when levied on, and it is error to dismiss
her claim on the ground that she is not the proper party to make it. 5. The deed having been made by the husband in trust for the benefit of the
wise, a separate estate in her is created thereby, and his marital rights do
not attach. 6. If it be a voluntary settlement on her by him, it must be recorded within
three months, to be of any force or effect against a bona fide creditor on the faith of the property without notice of the deed, but the claim will not be dismissed on demurrer, because the deed is not so recorded, as notice may be brought home to the creditor independently of the record.
Claim. Demurrer. Deed or will. Estates. Remainder. Parties. Husband and wife. Registry. Before Judge TompKINS. Richmond Superior Court. April Term, 1875.
Reported in the opinion.
Hook & WEBB, for plaintiff in error.
FRANK H. MILLER, for defendants.
Royal, as executor of one Poythress, levied a fi. fa. upon lands as the property of Armstead Fulcher. The judgment
Fulcher vs. Royal et al.
was dated in 1873. Mary A. Fulcher claimeil the land under a deed from her husband, the defendant in fi. fa., dated in 1858, but not recorded until 1873. The claim set out the deed. The plaintiff in fi. fa. demurred to the claim on four grounds—
1st. Because the deed had not been recorded ;
The court overruled the demurrer on all except the last ground, but dismissed the claim on that ground, and claimant excepted, and brought the case here for review. If the judgment of dismissal was right on either of the grounds, it should be sustained; therefore it becomes necessary to consider them all.
The deed when drawn up had the letters J.P. written below the attestation clause, but it was admitted that neither of the attesting witnesses were justices, but the same was admitted to record upon the affidavit annexed to the deed, where the attesting witnesses swore, November 18, 1861, that they saw Fulcher“ sign the above deed for the purpose therein named, and they also witnessed the same.”
The portions of the deed on which the claimant relied were as follows: “In trust, nevertheless, to and for the benefit of Mary Ann Fulcher and the heirs of her body during the natural life of the party of the first part (Fulcher,) who is to receive ample support with his family, and after his death his wife to enjoy the same with her children during her natural life. If no children by her present husband at her death, in that case the party of the second part (the trustee) is to take one-half of the said bargained property and equally divide the same between the heirs of Thomas Ogg, Henry Smith, and Raymond Hall. The renaining half is to be disposed of as the said Mary Ann Fulcher sees fit to do. Should the said William B. Boyd, of the second part, deem it expedient and advantageous to the party of the first part to make sale of the aforesaid tract of land in Richmond county and put the
Fulcher vs. Royal et al.
amount to interest, or lay the same out in real estate, he is fully authorized, but the same to continue in possession of the party of the first part, and for their natural support and benefit. But no part or portion of the foregoing to be at the disposal of the aforesaid named Mary Ann Fulcher and the heirs of her body during the life of the said party of the first part. And the party of the first part, for himself, his executors, administrators and assigns, warrant the aforesaid property to the party of the second part upon the trusts and conditions aforesaid.”
1. We cannot see how, on the question made by the demurrer, the record of the deed is important. The demurrer admits it to be a valid deed in respect to its execution, and besides the only defect is about its delivery, and that could be proven aliunde. But it is enough that the demurrer admits its proper execution. If it be said that a deed from husband to wife, under section 1778 of the Code, must be recorded in three months to be good against bona fide creditors without notice, the answer is that it might be proved on the hearing that this creditor was not bona fide, but had actual notice. So we think the court was right in overruling the demurrer on this ground.
2. 3. 4. We do not construe the paper to be a will. We think it passed a present interest to the claimant, giving her an estate for the life of herself and her husband, with the reservation of a support for bim during his life; anıl it being admitted that she never had children, it gives her a remainder in one-half the land, and the trustee a power to divide the other half between certain parties named in the deed. And this view covers both remaining grounds. She had title, and the right to claim the property ; and the title being in trust for her benefit, we think, as it came from her husband, it conveyed a separate estate to her free from his marital rights, and therefore, from his debts. Certainly she should have been the claimant. She held the estate, all of it, for life, with remainder contingent upon not having children, to one-half, and with the power in the trustee to dispose of the other half to certain parties. The trustee was dead, and she held these