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tion of the joint debt, and thereby an obli- what the decree of foreclosure covers the propgation as to such part arose as between the

erty and no rights of third parties have inter

vened, the mortgagor is not harmed by an imparties, this would not render the notes evi

perfect description of the property in the mortdences of partnership indebtedness to the gage, where the very property he pledged to payee thereof, in case it could be held that secure his debt was made subject to sale by the there was a partnership; this money in such

decree. case constituting capital paid in by the appel

2. SAME.

As between the parties to a chattel mortlant. Considering the matter with reference

gage any description of the property is sufficieni, to the actual relation of the parties, the if the parties at the time knew and understood appellee might be answerable to the appellant

what the mortgage covered. for some part of the money obtained and

[Ed. Note.-For cases in point, sce vol. 9,

Cent. Dig. Chattel Mortgages, $ 87.] used for the benefit of the appellee to the extent that the appellant was not reimburs- On rehearing. Petition for rehearing overed therefor by and through the surplus of ruled. the net income retained by him. He would For former opinion, see 77 N. E. 959. have to account for and pay to the appellant so much less of the surplus of the net income. WILEY, J. Appellant has petitioned for

The court could properly regard the unpaid a rehearing and has assigned four reasons notes as having been given for money borrow- therefor; but they may all be grouped and ed by the appellant alone for his own use, considered under the single proposition which and therefore might properly hold, as it in is urged by appellant, that the description effect did hold, that the outstanding notes of the property in the mortgage is too indefinought not to be considered as entering into ite and uncertain, even as between the parthe account between the parties adjusted in ties, to constitute a valid contract. The this suit. The parties were not partners inter original opinion contains the following sense, and they did not hold themselves out as tence: "The complaint specifically describes such to the payee of the notes, which were the property, and avers that it was the only not given or received as the notes of a part- property of its character owned by the nership. See Hubbell v. Woolf, 15 Ind. 204; mortgagors.” This expression is not wholly Ditts V. Lonsdale, 49 Ind. 521. To be a correct, and it is due to appellant that the partner, one must have an interest with an- facts as pleaded should be correctly stated. other in the profits of a business, as profits. It is averred that "the said cows and said There must be a voluntary contract to carry wagon being the only cows and only new on a business with intention of the parties wagon owned by and in possession of said to share the profits as common owners there

defendants on the day of the execution of of. A person who receives a share of the net said mortgage.” The complaint further profits of a business as compensation for avers: “That the property described herein services or in lieu of rent for the use of prop

is identical with and the same property as deerty, real or personal, is not thereby made a scribed in said mortgage." Omitting the departner. See 22 Am. & Eng. Ency. of L. (2d scription of the cows, the balance of the mortEd.) 36; Macy v. Combs, 15 Ind. 469, 77 Am. gaged property is described in the complaint Dec. 103; Emmons v. Newman, 38 Ind. 372; as follows: "Three work horses, one of which Keiser v. State, 58 Ind. 379; Bradley v. Ely, is gray in color, eight years old and named 24 Ind. App. 2,56 N. E. 44, 79 Am. St. Rep. 251. Joe; one of which is black in color, nine years There was no special finding, properly so call- old, and named Daisy; one of which is black ed, and the finding in which the remark above in color, nine years old, and named Dolly. quoted occurs is to be considered as a general Also one heavy broad-tread farm wagon.” In finding. Whether or not the remark of the the brief in support of the petition for a recourt may properly be regarded as in itself hearing counsel for appellant admits that presenting any question for decision, we have "the questions decided in the opinion are cornot been disposed to avoid the question dis- rectly decided, except the one proposition: cussed by counsel; and we conclude that the Was the complaint sufficient to warrant a disposition of the cause as indicated by the decree of foreclosure of the three work horses remark so inserted in the finding was not set out in the mortgage, and attempted to be materially erroneous, though the court below described in the complaint?" incorrectly adopted the term “partnership’ As between appellee and an innocent third loosely used in the course of the proceedings. party it may be conceded that the description Judgment affirmed.

of the horses, as stated in the mortgage, unaided, is too indefinite and uncertain, and

would render the mortgage invalid. But no (38 Ind. A. 403)

question of an innocent third party is presentRUDISELL V. JENNINGS. (No. 5,739.) ed by this appeal. The rights of the parties (Appellate Court of Indiana, Division No. 2. are to be determined upon the proposition June 22, 1906.)

that they are the original contracting parties. 1. CHATTEL MORTGAGES-IMPERFECT DESCRIP- If they knew and understood what specific TION-FORECLOSURE.

property was intended to be mortgaged, and Where the specific personal property intended to be mortgaged is described in the com

a part of such property was not properly plaint and finding, and there is no doubt but

1
described, under proper averments of the com-

plaint, parol evidence would be admissible in tified outside of the instrument, is good as aid of the description, and the mortgage against the world." This, it seems to us, is would not be void, as between the parties, a reasonable and correct statement of the for uncertainty. As indicated above, the law. Under the complaint and facts specialproperty intended to be mortgaged is specif- ly found, it affirmatively appears that appelically described in the complaint. Finding

Finding lant's rights are not injuriously affected, No. 6 is as follows: "That the horses covered and hence he has no right to raise the objecby said mortgage was one black mair (mare) tion that the mortgage does not definitely named Daisy, and one black mare named describe the property. No pretense is made Dolly, and one gray horse named Joe, each that the decree does not cover the specific one being nine years old, and being the prop- horses intended by the parties to be embraced erty of and in the possession of the defend- in the mortgage. In Gurley v. Davis, 39 Ark. ant Bailey Rudisell at the time of the execu- 394, it was held that as between the mortgation of the mortgage and now in the posses- gor and the mortgagee of personal chattels a sion of the said defendant,” etc. It thus ap- specific and particular description of the sevpears that the specific property intended to be eral articles mortgaged, by which to identify mortgaged is described in the complaint and them from other like articles of the mortfinding, and there is no doubt but what the gagor, is not necessary. To the same effect decree covers that property. No rights of are Call v. Gray, 37 N. H. 428, 75 Am. Dec. third parties have intervened. Who then is 141; Leighton v. Stuart, supra; See, also, harmed by an imperfect description of the Elder v. Miller, 60 Me. 118. In Gammon v. property in the mortgage? Certainly not ap- Bull, 86 Iowa, 754, 53 N. W. 340, it was held pellant, for the very property he pledged to that a chattel mortgage was good as between secure his debt is made subject to sale by the parties and as against persons having the decree to satisfy the debt.

notice, though the description of the property It is urged that the description of the was so defective as not to give constructive horses in the mortgage is insufficient, because

notice. it does not appear that the mortgagor did It is no doubt the general rule that an atnot have other horses of a like character tempt to mortgage a particular number of arwhich were not included in the mortgage. ticles in a larger number of like kind is void Cobbey on Chattel Mortgages, & 186, states

unless the articles to be mortgaged are sepathe rule as follows: "Only a party whose rated or so designated that they may be distinrights are injuriously affected by the mort- guished. 5 Am. & Eng. Ency. of Law, 962, and gage can raise the objection of insufficient authorities cited. But this rule does not apdescription of the property. A mortgage may ply where the rights of strangers are not inbe void as against bona fide creditors of, or volved, for in the absence of innocent purchaspurchasers from, the mortgagor, for defective ers or creditors, a specific description is not description of the property mortgaged, and necessary. 5 Am. & Eng. Ency. of Law, 963, yet good as between the parties to the mort- and authorities cited. In Plano Mfg. Co. V. gage, especially where the property included Griffith, 75 Iowa, 102, 39 N. W. 214, it was in the mortgage is identified by them. As held that a description in a chattel mortgage between them, a specific and particular de- so indefinite the recordation thereof would scription of the several articles mortgaged,

not be constructive notice is, nevertheless, from which to identify them from other good as to all parties having actual notice like articles of the mortgagor in the same

of its existence, and the intent as to the propcollection, is not essential to the validity erty which it was designed to include. This of the mortgage. A mortgage which is so rule should apply with greater force to the indefinite as to description of property that

parties to a mortgage. In case of Knapp, the record thereof would not constitute suflii- Stout, & Co. v. Deitz, 64 Wis. 31, 24 N. W. cient notice to a purchaser may, nevertheless, 471, it was held that a description in a chattel be valid between parties who are aware of mortgage as "Forty-one Berkshire hogs and the facts.” The following authorities sup- sixty-five grain sacks” was not so uncertain port the text: Hamilton v. Miller, 46 Kan.

as to invalidate the mortgage. A description 486, 26 Pac. 1030; Leighton v. Stuart, 19 Neb. of the property mortgaged as "six head of 546, 26 N. W. 198; Cole v. Green, 77 Iowa, heifer calves one year old," "one steer calf 307, 42 N. W. 304, 14 Am. St. Rep. 283; Clapp one year old," and "forty shoats all now on v. Trowbridge, 74 Iowa, 550, 38 N. W. 411. my farm," etc., was held sufficient where it A summary of the law relative to the de- appears that the mortgagor owned the stock scription of property in a chattel mortgage described, and that they were on the farm, is stated by Cobby, § 188, as follows: "The etc. McGarry v. McDonnell, 82 Iowa, 732, 47 general rule seems to be that as between the N. W. 866. A similar description of stock parties, any description is good, if the parties mortgaged was held sufficient even against at the time knew and understood what the subsequent purchasers from the mortgagor. mortgage covered. That as to third parties, Kenyon v. Tranel, 71 Iowa, 693, 28 N. W. where the property intended to be mortgaged 37. A mortgage describing 10 horses in the was identified at the time, any description possession of the mortgagor, was held not which points out the particular property, or void for uncertainty or insufficiency of desuggests inquiries by which it can be iden- scription, upon the theory that under such description it was competent to prove that Carter & Goodrich and D. D. Clayton, for the horses taken by the mortgagees were plaintiff in error. L. B. Reed and Carey & those actually mortgaged. Eddy, etc., Co. v. Parker, for defendants in error. Caldwell, 7 Minn. 225 (Gil. 166). As against a subsequent purchaser, property described

CREW, J. On the 7th day of September, as “one dark wood chamber suit (three

1898, letters of administration on the estate pieces), one center table," etc., now in their

of Michael Lambright, deceased, were by the (mortgagor's) possession in the city of Min- probate court of Wyandot county, Ohio, duly neapolis, etc., was held sufficient. Adamson issued to the plaintiff in error, Frank Lamv. Horton, 42 Minn. 161, 43 N. W. 849. See, bright, a son of decedent, who thereupon acalso, Tolbert v. Horton et al., 33 Minn. 104,

cepted said trust and duly qualified as admin22 N. W. 126.

istrator of said estate. At the time of his The cases relied upon by appellant are

appointment and qualification as such adprincipally those where the rights of inno- ministrator, Frank Lambright was insolvent. cent chird persons have intervened, and

It is admitted on the record, that Michael Lamhence are not of controlling influence here.

bright at the time of his death was liable as It seems to be the rule well fortified by the surety for his son, Frank Lambright, on cerauthorities, that parol evidence is admissible tain obligations then outstanding and unpaid, to identify property conveyed in a chattel

in the sum of $137.18 and that these severmortgage and to separate it from other prop

al obligations, on which Michael Lambright erty of a similar kind. Am. Dig. (Century

was surety, were afterwards paid off and Ed.) vol. 9, p. 2373 and authorities cited. satisfied by Frank Lambright, as administraUnder the complaint and findings in this

tor, out of the funds of the estate of said case, it clearly appears that the horses Michael Lambright. On January 30, 1899, against which the decree is to operate, are

Frank Lambright as administrator filed in the identical ones that were intended by

the probate court of Wyandot county his first both of the parties to be included in the mort- partial account. In this account he charged gagf, and it matters not whether appellant

himself with cash received to the amount of had other horses of like or different kind, at $7,919.37, and claimed credit for sundry disthe time. From the whole record we are led

bursements made by him amounting to $6,to the conclusion that the respective rights

588.82, leaving in his hands for distribution, of the parties have been rightly adjudicated,

as shown by this account, $1,330.55. He did and no error is presented prejudicial to ap

not, in this account, charge himself with, or pellant.

account for the $1,137.18, his debt to the esPetition for a rehearing overruled.

tate, which had been paid by him out of the funds of the estate, although he claimed and

was allowed by the probate court a credit for (74 Oh. St. 198)

the amount so paid. In addition to this credit LAMBRIGHT V. LAMBRIGHT et al. of $1,137.18, said administrator claimed and

(Supreme Court of Ohio. May 1, 1906.) was allowed, in said account, further credits 1. EXECUTORS AND ADMINISTRATORS-ASSETS- as follows: "To amount paid Frank LamDEBTS DUE BY HEIRS—DISTRIBUTION.

bright on his claim as per order of probate The administrator or executor of a dece

court, $634.17.“To amount paid Frank dent's estate has the right and it is his duty to retain out of the distributive share of an heir

Lambright, administrator's commission, $273.or legatee, or out of the sum due a creditor, an 40." "To amount paid Frank Lambright for amount equal to the debt owing by such heir,

expenses $25," and to amount paid Frank legatee, or creditor to the estate; and this right

Lambright on his distributive share $178. and duty exists whether the heir, legatee, or creditor was indebted to the deceased before his

Thus it will be seen that out of the above death or contracted a liability to the estate sum of $7,919.37 cash actually received by thereafter.

him, and with which he charges himself in [Ed. Note. For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, S

said account, Frank Lambright retained or 1170.]

paid to himself out of the moneys of the es2. SAME.

tate, the sum of $1,130.57. No exceptions A debt due from an heir, legatee, or credit- having been filed thereto this account was or to an estate is an asset of such estate, and approved and settled by the probate court where the distributive portion of such heir or

March 6, 1899. January 14, 1901, said ad

. legatee or the claim of such creditor is equal to or greater than his debt to the estate, the ad

ministrator filed a second account which was ministrator or executor should charge himself approved and confirmed February 4, 1901, no with, and account for, the full amount of the

exceptions at that time having been filed same.

thereto. Thereafter, and within eight months, (Syllabus by the Court.)

to wit, on March 7, 1901, the defendants in Error to Circuit Court, Wyandot County. error, as heirs at law of Michael Lambright,

Frank Lambright was appointed executor deceased, filed in the probate court of Wyanof Michael Lambright, deceased. On his final dot county their exceptions to said account, accounting, William Lambright and others alleging therein among other grounds of exfiled exceptions. From an order sustaining ception the following: “There is manifest the exceptions, the administrator brings er- error in said account. Said administrator has ror. Affirmed.

not embraced in his inventory or returned as assets the sum of $1,137.18 due from him the defendants in error which were sustained to the estate." Upon the hearing, this ex- by the probate court, and said administrator ception was sustained by the probate court, was held to be properly charged in his suppleand thereupon, at his request, leave was given mental account with said item of $1,137.18, the administrator Frank Lambright, to file An appeal was taken by the administrator a supplemental account. Thereafter, on to the court of common pleas, where, on March 19, 1901, he filed what he denominat- the hearing of said exceptions. it was found ed a "supplemental and final” account, charg- and adjudged by that court, “that said acing himself therein with said sum of $1,137.- count is in all respects correct and accord18, omitted from his former account. This ing to law; that as stated therein, a mistake supplemental account was, without exception or error was made in said executor's account or objection from the administrator, approv- immediately preceding this account, designated, confirmed, and settled by the probate ed as a "supplemental account," in the sum court on May 13, 1901, and said administra- of $1,137.18; that said sum. represents a tor was ordered to distribute according to debt owing by said executor to said estate, law, the balance in his hands belonging to but that said debt from him to such estate said estate, amounting to $1,283.26. On Feb- did not exist at the time he qualified by ruary 25, 1902, said administrator filed anoth- giving bond as such executor; that such er account which he entitled "final account," debt accrued by reason of his having paid in which he charged himself as follows: debts out of the funds of the estate for which "To amount received from William Lambright the estate was liable as surety for him ; that on account due said estate since last account at the time of making such payments, he was herein was filed $10.00.” And then, for the and ever since has been insolvent, and wholly purpose of procuring the correction of an al- unable to pay such debts, that said sum of leged mistake in his supplemental account $1,137.18, should not

$1,137.18, should not have been charged filed March 19, 1901, he appended the follow- against said executor as money in his bands ing statement: “Said administrator in jus- in said supplemental account, and that the tice to his sureties on his bond here makes exceptions to this account should be overan explanation and correction in the item of ruled, to which the exceptors then and there $1,137.18 charged to him in his supplemental excepted." Error was prosecuted to the ciraccount herein filed on the 19th day of March, cuit court where the finding and judgment 1901, the explanation of which was given in of the court of common pleas was reversed. his first account filed herein, but omitted by And the circuit court proceeding to render mistake and inadvertence in said supplement- such judgment as the court of common pleas al account. Said explanation more fully stat- should have rendered, found from the undised is as follows: Said decedent, Michael puted facts that said Frank Lambright as Lambright, at the time of his death, was administrator, should be charged with said jointly and severally liable with the said sum of $1,137.18, and rendered judgment Frank Lambright in the sum of $1,137.18, accordingly. To obtain a reversal of this which sum this administrator did not owe judgment of the circuit court the administrathe estate at the time of the decedent's death tor brings the present proceeding in error. nor at the time he qualified by giving bond The record in this case, upon the facts stated, as such administrator; and which sum for presents for our consideration the question, that reason did not become assets of said whether or not Frank Lambright as adminestate for which his said sureties were or istrator was properly charged by the circuit are liable. Said Frank Lambright, as such court with the item of $1,137.18 as assets in administrator, should have charged himself his hands to be accounted for and distributed in said supplemental account with the bal- by him according to law. ance as shown by said supplemental account, It is conceded to betne general rule that the to wit: $1,283.26, less the said sum of $1,137.- indebtedness of a legatee or distributee con18, which difference is here charged, to wit: stitutes assets of the estate which it is the $146.08. Total amount for which said admin- duty of the executor or administrator to colistrator and his bondsmen as such are liable lect, whether such legatee or distributee was less the credits hereinafter claimed, $156.08. indebted to decedent before his death, or beSaid Frank Lambright was at the time of came indebted to the estate thereafter. It the death of said decedent and has ever is, however, in the present case, contended since that time remained, and now is, insol- by counsel for plaintiff in error, that inasvent, and is unable to pay the said joint much as Frank Lambright at the time of his indebtedness of said decedent and himself. appointment and qualification as adminis

* * Frank Lambright owes said estate trator of his father's estate was not then the sum of $1,137.18 which sum was paid by actually indebted to said estate, but only the administrator on claims upon which the became debtor thereto, in the manner above said Michael Lambright was surety for him. stated, after his appointment as administraThe said Frank Lambright is wholly insol- tor, that, therefore, he being then insolvent, vent. This item is the item charged to said such indebtedness did not become an asset of administrator in his supplemental account the estate in his hands to be accounted for filed March 19, 1901."

by him as so much cash received, and may To this account exceptions were filed by not properly be so charged against him, and

*

that to so charge him would work injustice Law of Administration, $ 564; Henry V. and operate as a fraud on the sureties upon Fiske, 11 R. I. 318; Gosnell, Trustee, v. his administration bond. How much of force Flack and Hoffman, Adm’rs, 76 Md. 423, 25 and reason there might be in this claim, if Atl. 411, 18 L. R. A. 158; New y. New, 127 the administrator were not himself a bene- Ind. 576, 27 N. E. 154; Baily's Estate, Jackficiary and distributee of Michael Lambright's son's Appeal, 156 Pa. 634, 27 Atl. 560, 29 L. estate to an amount equal to or exceeding R. A. 444; Sanchez v. Torster, 133 Cal. 614, the amount owing by him to said estate, we 65 Pac. 1077; Ramsour, Ex'x, v. Thompson need not determine. It is undeniably the and Ramsour, Ex'rs, 65 N. C. 628; Tinkham law of Ohio that an administrator or exec- v. Smith, Adm'r, 56 Vt. 187; Taylor v. utor has the right and it is his duty, in the Jones, 97 Ky. 201, 30 S. W. 595. It is sugdue administration of his trust, to retain gested in argument, in the brief of counsel for out of the distributive share of an heir or plaintiff in error, that the adjudication and legatee, and to hold, and set off against the settlement by the probate court, of the first claim of a creditor indebted to the estate, account filed by Frank Lambright as adminisan amount, if so much there be, as shall equal trator, no exception having been filed thereto, the indebtedness of such heir, legatee or was and is, as between the parties to the creditor to the estate; and this right and present controversy, final and conclusive. duty exists whether the heir, legatee or cred- This claim we think is sufficiently answered itor was indebted to decedent at the time by the provision of section 6187, Rev. St. 1906, of his death or contracted a liability to the language of which is as follows: "and the estate thereafter. In either event the right upon every settlement of an account by an of the heir or legatee to participate in the executor or administrator all his former acdistribution of the estate, or of the creditor counts may be so far opened as to correct to be paid his claim, is subject and subordi- any mistake or error therein; excepting that nate to the debt of such distributee or cred- any matter of dispute between two parties itor to the estate, and the latter, in so far which had been previously heard and deteras there are assets in the hands of the ad- mined by the court shall not be again brought ministrator applicable thereto, must first be into question by either of the same parties paid and satisfied. And the duty and obli- without leave of the court." gation resting upon the administrator or We are unanimously of the opinion that executor under such circumstances to with- the judgment of the circuit court in this case hold and apply, to the extent of the debt, the charging Frank Lambright as administrator amount that would otherwise have been pay- with said sum of $1,137.18 as assets in his able to the heir, legatee or creditor, is in no hands was right, and the judgment is accordmanner controlled or affected by the solvency ingly. or insolvency of such heir, legatee, or cred- Affirmed. itor. In the present case, as we have seen, Frank Lambright was both an heir of, and SHAUCK, C. J., and PRICE, SUMMERS, debtor to, the estate he was administering. SPEAR, and DAVIS, JJ., concur. He used of the assets of said estate in payment of an obligation or debt of his own, on which his father was surety, the sum of

(74 Oh. St. 168) $1,137.18. With this amount, so used and BIGALOW FRUIT CO. V. ARMOUR CAR applied by him, he did not charge himself in

LINES. his account, until compelled thereto by the (Supreme Court of Ohio. May 1, 1906.) judgment of the probate court. His accounts

1. CORPORATIONS FOREIGN CORPORATIONS show that during his administration of the

INTERSTATE COMMMERCE-ATTACHMENT. trust estate he retained and paid to himself, A foreign corporation, whose business is as distributee and otherwise, out of the furnishing refrigerator cars and ice therefor for assets in his hands as administrator, sums

transportation purposes partly within this state

and partly without and across this state, is a aggregating in amount more than $1,150, and

“transportation or other corporation engaged in took credit in his accounts, as, against the Ohio in interstate commerce business," within estate, for the amount so retained or paid to the meaning of section 148c, Rev. St. 1906. himself. Thus it will be seen that said

2. SAME.

Such corporation is not subject to the proFrank Lambright had in his hands, as due

visions of section 148c, Rev. St. 1906, nor enhim from the estate, an amount in excess of titled to comply with its requirements; and a that necessary to pay off and cancel his debt voluntary compliance with that section by such of $1,137.18 due the estate. This being true,

corporation will not bring the corporation with

in the proviso of section 148d, Rev. St. 1906, it was his duty as administrator to so apply

so as to exempt it from process of attachment and use it and to account for and charge upon the ground that it is a foreign corporation himself with said sum of $1,137.18 as assets

or nonresident of this state. of the estate in his hands to be distributed

(Syllabus by the Court.) according to law. This conclusion is clearly Error to Circuit Court, Cuyahoga County. supported by the following authorities: Mc- Action by the Bigalow Fruit Company Gaughey, Adm'r, v. Jacoby, 54 Ohio St. 487, against the Armour Car Lines. Judgment

. 44 N. E. 231; James v. West, Adm'r, 67 Ohio for plaintiff in the court of common pleas St. 28, 65 N. E. 156; Woerner's American was reversed by the circuit court, and it

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