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7. Legacies.—The general rule is, money bequeathed cannot be attached in the hands of an executor or administrator. He is not the debtor of the heir, and therefore cannot be garnisheed as such He is the representative of the testator. He is also a legal custodian. Besides, it would hinder and embarrass the settlement of the succession, were he liable to be charged as garnishee before the regular liquidation of the debts and the rendition of his account.1

There are exceptions to the general rule, however. Some of the States, by statute, make legacies attachable. After the court of probate has rendered the judgment of distribution, and the sum due any given heir has been definitely ascertained, and there remains no other duty of the executor in regard to it than that of paying it over to the heir, it has been held that it may be attached in the executor's hands in a suit against the heir.3 in Kansas, and was not indebted to them. chell z'. Allen, i Conn. 386. That an exThe garnishee was discharged. Wheat v. ecutor is not liable, on a process of for. Platte City, etc., R. Co., 4 Kan. 370, 376. eign attachment, for the amount of a ieg.

An insolvent corporation was factorized acy which, by the terms of the will, is not as the debtor of A, who held some of its payable until a day after that when debonds, payable in New York, and secured mand is made on the execution. Benton by a mortgage to trustees, one of whom v. Dutcher, 3 Day (Conn.), 440; McClelresided in this State. A had previously lan v. Solomon (Fla.), 2 South. Rep. 825; pledged the bonds to a New York bank as Hankinson 1. Page (N. Y.), 31 Fed. Rep. collateral security for a debt of less amount 184; Barncs v. Treat, 7 Mass. 271; Whitethan their value; and, pending the suit, head v. Coleman, 31 Gratt. (Va.) 784. the trustees sold the mortgaged property 2. Legacy-When Attachable by Statfor enough to pay off all the bonds—the ute.-- Whether a legacy is attachable in avails of the sale being in the hands of the Pennsylvania, or whether the English Connecticut trustee. Held, that the factor- rule to the contrary prevails there, was izing creditor might maintain a bill in queried in Ross z'. McKinney, 2 Rawle equity against the trustees, the bank, A (Pa.), 226. Hild, that it cannot be, by and the corporation, by virtue of Gen. process of foreign attachment, when it is Stat. p. 74, S 322 (giving factorizing credi- in the hands of an executor. Shewell v. tors all the security which the debtor had), Keen, 1 Whart. (Pa.) 332. for a disclosure and account of the amount Where one bequeathed the interest of of the lien of the bank, and a decree en- a certain sum to his wife during her life, joining the trustees to pay no more than

and his widow afterwards married again, that amount to the bank, and to hold the it was held that the interest so accruing surplus to abide the judgment that should was not liable to foreign attachment at be rendered in the factorizing suit.” Can- the suit of a creditor of the second husder v. Penniman, 32 Conn. 238, 240. band. Robinson v. Woelpper, 1 Whart. Compare Judah ?" Judd, i Conn. 312.

(Pa.) 179. 1. Legacy-Effect of Attaching: -The By act of April 13, 1843, § 1o, legaattachment of a legacy in the hands of an cies were made attachable, in Pennsylexecutor transfers the right to receive itvania, under execution.-Baldy 2. Brady, to the attaching creditor, subject to the 15 Pa. St. 103;—and, by another act in rights of the garnishee. If the legatee be that State, they were subjected to liability indebted to the estate of the testator to an to the process of foreign attachment, amount exceeding the legacy given to Gochenaur's Exrs. 7. Hostetter, 18 Pa. him, the executor has the same right to St. 414;--and the legacy or distributive set off such indebtedness against the at- share may be attached there before any taching creditor, as he would have had settlement of the estate of the decedent,against the legatee. Strong's Executor v. Sinnickson v. Painter, 32 Pa. St. 384; Bass, 35 Pa. St. 333.

Lorenz's Admrs. 2. King, 38 Pa. St. 93; General Rule that Legacies are Not At- Holbrook z'. Waters, 19 Pick. (Mass.) 354; tachable.-Hild, in Connecticul, that a leg- Wheeler y Bowen, 20 Pick (Mass.) 563. acy in the hands of an executor cannot 3. Distributive Share.--A distributive be taken by foreign attachment. Win- share is not liable to attachment in execu

8. Real Estate.- Foreign attachment is not now confined to personalty, as formerly, but is generally allowed against realty. One is not obliged to show that no goods can be found, before having the right to attach land.

Only the right, title, and interest of the attachment debtor in or to the land is affected by the levy." The levy is made by obtaining control, posting upon the premises, or giving notice to the tenant in possession, and returning a proper description to the court with the executed writ. The posting need not be on each of several adjoining lots attached,3

The attachment lien attaches upon valid seizure; 4 but where

66

tion until ascertained by a settlement of to the wife. Vance v. McLaughlin's the administrator's account. McCreary Admr., 8 Gratt. (Va.) 289. v. Topper, 10 Pa. St. 419. After the fil- A non-resident debtor dying after the ing of his account, showing money in debt he owed has been prescribed, forhand for distribution, an attachment will eign attachment will not avail to recover lie against the purchase-money, of land the debt from his estate. Markle's Admr. sold by him, in the hands of the purchas- v. Burch's Admr., II Gratt. (Va.) 26. er at the suit of one of the legatees of 1. Land Attachable.-Drake on Attach. the proceeds of the land. Brady v. Grant, (6th Ed.), S 233. 11 Pa. St. 361; Fitchett v. Dolbee, 3 Harr. 2. Drake on Attach. (6th Ed.), S 234. (Del.) 267.

3. Posting on Real Estate.

- When an Independently of the statute author. order of attachment, issued against a nonizing attachments against non-resident resident, is levied upon several town lots, debtors, courts of chancery have jurisdic- the failure of the officer to place a copy of tion, in suits against the heirs of non-resi- the order on each lot does not render the dent debtors, to subject the personal es- service of the order void. Blake v. Rider, tate of the decedent, found here, to the 36 Kan. 693; Wilkins v. Tourtellott, 28 payment of his debts."

Peterson v. Kan. 825; Head v. Daniels, 38 Kan. I. Poignard, 6 B. Mon. (Ky.) 570; Heffer. Where an officer returned that he had man v. Forward, 6 B. Mon. (Ky.) 568. posted the notice on the premises, though

Estate Under Administration. -An ab- the statute requires that the posting should sent debtor's distributable interest, in an be in “a conspicuous place,” the court, estate in the hands of an administrator, under the legal presumption that the offimay be subjected, by foreign attachment, cer had done his duty, held the return sufto the payment of the debt.

Moores v.

ficient. Lewis v. Quicker, 2 Metc. (Ky.) White, 3 Gratt. (Va.) 139.

284. A creditor of a deceased debtor may Where there is no prescribed form, and proceed, by foreign attachment, against no evidence to show that the officer has ihe heirs residing out of the State, to sub- failed in his duty, the court will presume ject land or its proceeds in the State de- in his favor with respect to a return. scended to them from the debtor. Car- Miller v. Fay, 40 Wis. 633; Redus v. rington 2. Didier, 8 Gratt. (Va.) 260. If Wofford, 12 Miss. 579. But not when he the land has been sold under a decree at had failed to state that he had posted at the suit of the heirs, and is in the hands all, in his return. Sharp 2'. Baird, 43 Cal. of a commissioner, he should be made a

577. party as such, and should be restrained, by 4. Real-estate Lien. - When lands are indorsement on the process, from dispos- seized upon a writ of foreign attachment, ing of the proceeds. Carrington v. Didier, and judgment obtained, execution may 8 Gratt. (Va.) 260.

issue without scire facias against the posIt was held that a wife's interest as lega- sessor as garnishee. Gibson 2. Robbins, tee in her father's estate, in the hands of 9 Watts (Pa.) 156. the executor, may be subjected by the “A writ of foreign attachment, in Penncreditor of the husband, by a proceeding sylvania, executed upon real estate, binds by foreign attachment, when the husband the same from the time of its execution resides out of the State. But if the hus- and before judgment, as well as against band die pending the proceedings (his subsequent judgments as against purwife surviving him), the lien of the credi- chasers and mortgagees.” Schacklett & tor is defeated, and the property belongs Glyde's Appeal, 1a Pa. St. 326.

ance.3

land was taken under an insufficient affidavit, it was held to attach only upon the substitution of a proper one.1

Foreign attachment is not hindered by homestead exemption laws in favor of citizens ;? nor by fraudulent anterior convey

But a valid deed of trust has preference ; 4 and a conveyance of the legal title subject to redemption by the grantor."

VI. Attaching in the Hands of Third Person.—He is responsible for what he has of defendant's property, or for what he owes, from the time of service. His answer binds him, but he may subsequently explain admissions made under a misapprehension. His

'In foreign attachment the land itself been held insufficient in a direct proceedcan be attached and a lien obtained, which ing by the judgment debtor to set them carries with it the accruing rents. But an

aside. Den man v. McGuire, ior N. Y. attachment in execution cannot be levied 161. on the land; that the fi. fa. must reach; Real Estate Fraudulently Conveyed. the attachment is levied only of debts or It was held, in Virginia, that a creditor-atchoses in action.” Evans v. Hamrick, 61 large may maintain a suit in equity, in the Pa. St. 19.

nature of a foreign attachment, to set 1. Real Estate - Amended Affidavit. — aside a fraudulent deed, conveying real es“ Under sec. II of ch. 151 of the W. Va. tate, made by his debtor-both the debtor Code of 1860, a foreign attachment suit and the grantee living, and being out of in equity is brcught, the affidavit is in the Commonwealth. Peay v. Morrison's form except that it does not state the Exrs., 10 Gratt. (Va.) 149. nature of the plaintiff's claim,' as required 4. Land Deed of Trust.—The rights of by the amendment of 1867 to the first sec- an assignee of bonds, secured by deed of tion of the chapter; a few months after- trust on land sold by the assignor, are prewards, but before any other rights had ferred to the rights of an attaching creditor attached to the subject, an unexception- whose attachment is subsequent to the asable affidavit was filed, but there was no signment. Schofield v. Cox, 8 Gratt. (Va.) other order of attachment issued. Hild, 533. that the lien attached to the land as against 5. Real Estate Attached After Legal everybody, at least from the filing of the Title Conveyed. - In proceedings comsecond affidavit.” Chapman v, Railroad menced against a non-resident by attachCo., 26 W. Va. 300, 324; s. C., 9 Am. & ment of realty, where it appears that, beEng. R. R. Cas. 484.

fore conveyance to defendant, the legal 2. Exemption With Respect to Non-resi- title had been conveyed to the sheriff undents. · Exemption laws, designed to der the insolvency laws, subject to a reshield the citizen from having his home demption by the grantor on the payment and other designated property sold under of the debts, and that the right of redempexecution, do not avail the non-residenttion had been sold under a decree, in an for this purpose. Yelverton v. Burton, action pending at the time of the convey26 Pa. St. 351; McCarthy's Appeal, 68 ance to the defendant, the bill should be Pa. St. 217.

dismissed. Culbertson's Representative 3. Real Estate - Collateral Attack of v. Stevens (Va.), 4 S. E. Rep. 607. Judgment.-Attaching creditors obtained 6. Even the appearance of the garnishee judgment against McCann, a non-resident has been held insuíficient to cure defective notified only by publication. He had pre- service upon him. Masterson v. Missouri viously conveyed his land (the property Pacific R. Co., 20 Mo. App. 653; Mcattached) to McGuire. The attaching Donald v. Moore, 65 Iowa, 171. Comcreditors brought a suit against McGuire pare Flournoy v. Ruttledge, 73 Ga. 735. to have their judgment declared a lien and Lupton v. Moore, 101 Pa. St. 318. upon the land, and to set aside the said 7. Attaching in Garnishee's Hands. conveyance as fraudulent. The defend- Attachment of property or credit in the ant resisted by making a collateral attack hands of a third person dates from the upon the attachment proceedings and service upon him if there is really in his judgment. Held, that the proceedings possession any property subject to garshould be sustained unless absolutely void nishment, or if he is then indebted to the for jurisdictional defects; and that they defendant. Conley v. Chilcote, 25 Ohio should be liberally construed to uphold St. 320. Subsequent indebtedness is not the judgment, although they might have sufficient. Hitchcock v. Miller, 48 Mich.

possession may be such that the defendant cannot reclaim it; and then the attaching creditor cannot, unless the defendant is estopped by his own fraud. Trust funds are governed by the same rule as other property, with reference to the garnishability of the holder.2

1. Right to Retain.Pending the action, the garnishee is the rightful custodian of property subjected to garnishment in his hands, and he is entitled to legal protection if disturbed. He cannot relieve himself by delivery to his principal, or to any other person, but must stand as a stakeholder till the court shall have charged or discharged him.3

2. Jurisdiction. - If nothing of the non-resident defendant's property is directly attached, and he is merely notified by publication, jurisdiction depends upon valid garnishment. It is not 603; Hopson v. Dinan, 48 Mich. 612: at will. McLaughlin v. Swann, 18 How. Kimball V. Macomber, 50 Mich. 362; (U. S.) 217; Jackson v. Bank of U. S., 10 Kraft v. Raths, 45 Mich. 20; Conway v. Pa. St. 61; Park v. Matthews, 36 Pa. St. Ionia Circuit Judge. 46 Mich. 28; Bishop 28; Bank of Northern Liberties v. Young, 17 Wis. 16. The admission, by Jones, 42 Pa. St. 536; Cook v. Dillon, the garnishee, that an assignment by the 9 Iowa, 407; Huntington v. Risdon, 43 defendant is valid, precludes him from Iowa, 517; Haskell v. Haskell, 8 Metc. afterwards denying indebtedness to the de- (Mass.) 545: Stevens v. Bell, 6 Mass. 339; fendant because a receiver has been ap- Davis v. Marston, 5 Mass. 199; Pierson pointed. Bartlett 2'. Wilbur, 53 Md. 485. v. Weller, 3 Mass. 564; New England Ins. But if he, in ignorance of a previous as- Co. v. Chandler, 16 Mass. 275; Richards signment, answers that he is indebted to v. Allen, 8 Pick. (Mass.) 405; Webb v. the defendant, the garnishment cannot Peele, 7 Pick. (Mass.) 247; Tucker v. defeat the assignment. Sweet v. Read, Clisby, 12 Pick. (Mass.) 22: Sparhawk v. R. I. 121.

Cloon, 125 Mass. 263; Daniels v. Ulridge, A debtor's promise to pay in goods, 125 Mass. 356; Wells v. Hawes, 122 Mass. does not make the goods attachable in his 97; Thompson v. Stewart, 3 Conn. 171; hands in a suit against the promisee. Edson v. Trask, 22 Vt. 18; Thompson v. Jones v. Creus, 64 Ala. 368.

Stewart, 3 Conn. 171; Hearn v. Crutcher, 1. Depends on the Nature of his Posses- 4 Yerg. (Tenn.) 461. sion.-One who holds property of the 3. The Garnishee's Possession. - The debtor merely by the sufferance of the

cannot rightfully order that the latter may be garnisheed. Buddig v. property of the defendant, held by the Simpson, 33 La. Ann. 375. Sometimes garnishee, he delivered to the sheriff the right of possession, without actual pending the action. Hall v. Brooks, 89 custody, has been thought to justify gar- N.Y. 33. Should the garnishee be divested, nishment. Morse v. Holt, 22 Me. 180; action for trespass would lie, but he could Lane v. Nowell, 15 Me. 86. The credi- only recover for the injury done to himtor's right to attach in third hands is self. Goodrich v. Church, 20 Vt. 187; usually measured by that of the de- Burlingame '. Bell, 16 Mass 318; Sweet fendant to regain his property were there v. Brown, 5 Pick. (Mass.) 178; Rockwood no suit; but it is greater in case the de- v. Varnum, 17 Pick. (Mass.) 289. He fendant is estopped from reclaiming, by may protect the property, in his own his own fraud. National Bank of Mis- name, as lawful custodian. just as a shersouri v. Staley, 9 Mo. App. 146; Cairo, iff may. White v. Madison, 26 N. Y. etc., R. Co. 7'. Killenberg, 82 Ill. 295: 117.

He cannot be divested by an execuLundie v. Bradford, 26 Ala. 512; Fitzger- tion in another suit, of later date. Bank ald v. Hollingsworth, 14 Neb. 188; Balt. of the State of Missouri v. Bredow, 31 & Ohio R. Co. v. Wheeler, 18 Md. 372; Mo. 523; Keyser v'. Mitchell, 67 Pa. St. Armor v. Cockburn. 4 Martin, N. S. (La.) 473; White v. White, 30 Vt. 338. He 667; Burnside v. McKinley, 12 La. Ann. cannot divest himself by delivery to the 505: Skowbegan Bank w. Farrer, 46 Me.293. defendant,-Aldrick v. Woodcock, 10 N.

2. Trust Funds.-Whether trust funds H.99:--nor by delivery to any one, -Stiles may be attached in the hands of the trus- v. Davis, i Black. (U. S.) 101; Walcott 2'. tee by garnisment depends upon the re- Keith 2 Fost. (N. H.), 196. lation of the defendant to them—whether 4. Property in Garnishee's Hands Giving he is the owner, with right to recall them Jurisdiction. It has been held that “the

court

necessary to the jurisdiction that the thing or debt attached in third hands should be actually in the hands of the executive officer of the court. The garnishee is, in some sense, the keeper of the property under the court, though not subject to the control of the sheriff as an ordinary keeper is.

3. Rights of Garnishee.-Whatever lien or privilege the garnishee may have in the property held by him, in relation to the defendant, he still has after being garnisheed ; and the attaching creditor acquires no preference over him. His rights arising after garnishment are not affected by it. His relations to the attachment defendant usually determine his obligations with reference to the attaching creditor as a subrogee, after the garnishment has been judicially recognized. For instance, if the defendant has really sold, to the person in possession, the property sought to be garnisheed, the attaching creditor can no more reach it than the vendor can.

attachment of property of non-resident tachment upon him only binds the rents defendants in the hands of a garnishee then due-not those subsequently accrugives the court jurisdiction to render a ing. Haffey v. Miller, 6 Gratt. (Va.) 454. valid judgment against such defendants, Though the home defendant claims the even though the garnishee, by his answer, land in his possession, and shows a receipt denies that he has property belonging to, for the purchase-money, yet, as he does or is indebted to, such defendants, and the not pretend that he paid in money, and as fact of his liability is not ascertained until his account against the absent debtor is after the entry of such judgment,”—Keep not proved to the satisfaction of the court, ?'. Sanderson, 12 Wis. 352; compare the land will be held liable. Kelly v. Malley v. Altman, 14 Wis. 22;-and, when Linkenhoger, 8 Gratt. (Va.) 104. nothing is attached further than service of 2. Property Sold to Garnishee by Degarnishment on the garnishee, that is held fendant. - If, before service of garnishsufficient to jurisdiction if he holds prop- ment, the garnishee has bought the property of the defendant, or owes him,-Knee- erty, sought to be reached, of the defendland v. Cowles, 4 Chand. (Wis.) 46;—but ant, for valuable consideration, it cannot it is jurisdiction over the thing attached, be attached in the hands of the garnishee; or that secured by garnishment, only; and he, as purchaser, may intervene to and notice to the non-resident defendant claim and defend his property.

Elliot v. is given,-Winner 2. Hoyt, 68 Wis. 278; Maroney (D. C.), 10 Cent Rep. 171. Corning v. Hoyt, 68 Wis. 294;--ior, where If the property sought has been assigned there is no personal service upon the de- to another by the defendant, the garnishee fendant, a suit in attachment is in the has been held not bound to disclose, in his nature of a proceeding in rem, and the answer, that the assignment was fraudujudgment will bind only the property at- lent, as he has no interest in such matters. tached," —Atchison 7. Rosalip, 4 Chand. Phipps v. Rieley, 15 Oreg. 494. (Wis.) 12;—and if no publication be made, When Garnishee Should Pay to the Plainthe attachment proceedings will be void, - tiff.-If, in an attachment suit against a Cummings v. Tabor, 61 Wis. 185; Ander- non-resident defendant (foreign insurance son v. Coburn, 27 Wis. 558, 563.

company), the writ is served on him, and 1. Interested Garnishees.--In a proceed- afterwards the amount due from the ing by foreign attachment, the home de- garnishee is judicially ascertained to be fendant (garnishee), having property of less than the judgment against the nonthe absent defendant in his possession, resident defendant, such garnishee should for the keeping of which the absent de- be ordered to pay the amount of his infendant is indebted to him, is entitled debtedness directly to the plaintiff as a to have his claim first satisfied out of the credit on his judgment, and ought not be property, as against the attaching creditor. ordered to pay it to a receiver, and the Williamson ?'. Gayle, 7 Gratt. (Va.) receiver ordered to pay it to the plaintiff 152.

on his judgment, against the non-resident If he holds lands of the absent defend- defendant. Webster Wagon Co. v. Peterant upon a lease, the service of the at- son, 27 W. Va. 314.

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