Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing 22 Cal. 194 at 199.
Appeal from the Eleventh Judicial District.
COUNSEL:
I. Burpee can make no valid claim to the fund. It is a specific, definite fund, acquired by the sale of property long after the date of his agreement with Bunn, and not belonging to Bunn. Even if he had a valid claim or cause of action against Bunn on his contract, that fact would give him no right to this fund, which belongs to other parties. His whole claim is that Bunn, as trustee, agreed to give him the first money that came to his hands to apply on his debt. At the time of the agreement, the fund was not even in existence, and there could be no specific lien upon it. It is but an executory contract at best, and for any breach of its conditions he must look to the contracting party in a personal action.
Bunn had no right or authority to make such a contract for Mrs. Crandall, and having made it, it cannot bind her, or her husband, or the property of either of them. As a trustee, acting under certaindefined powers, and for certain definite purposes, he cannot go beyond the limits of the authority expressly delegated.
II. Mrs. Crandall's claim is founded entirely upon the deed of trust from her husband, made for the very purpose of defrauding his creditors in the collection of their just debts. Unless the Court holds that a party in embarrassed and insolvent circumstances can, by a deed of trust for the benefit of his wife, so deed away his property as to keep it beyond the reach of the law for the protection of others, and at the same time keep everything within his own family, she has no claim.
If this fund is not the separate property of Mrs. Crandall, as recognized by our statutes, then it is most certainly liable for his debts, and is bound to answer our suit and garnishment. That it is not her separate property, see secs. 1, 2, Arts. 2605, 2606, p. 487 Wood's Digest; Secs. 6, 9, p. 488; 4 Cal. 200; 7 Id. 27; and particularly 12 Id. 253
III. McWilliam's attachment was levied for a partnership debt upon the fund which was partnership property. His equity is, therefore, superior to that of the individual creditor, notwithstanding the prior attachment of the latter. Chase v. Steel , 9 Cal. 64; Conroy v. Woods , 13 Id. 626.
Higgins & Higgins, for Appellant McWilliams.
Hereford & Williams, for Appellant Burpee.
James Anderson, for Respondent.
I. Burpee, according to his own allegations, has sufficient property liable to his judgment secured by virtue of his proceedings to satisfy his demands against said H. Crandall, aside from the fund in Court, and is therefore not entitled to it. He bases his right to it upon the written agreement entered into between him and Bunn, on the twelfth of August, 1861. That agreement is without any consideration moving from Burpee to Bunn, and is therefore void. The language of the agreement is, " Now, in consideration of said Dwight Burpee having stipulated to delay execution on said judgment against said Crandall, I promise and agree, as trustee aforesaid," etc., etc. Burpee had previously made the agreement with H. Crandall, the consideration of which was that the said Burpee should take judgment by default, and Burpee was not to issue execution for six months, which term had not expired when he brought suit. Bunn was not authorized to pay the moneys on his demand: it would have destroyed the trust.
II. McWilliams & Co. couldin no event have any right to exceeding fifty dollars of the fund, because less than fifty dollars of the indebtedness they sue for had accrued when H. Crandall left the firm of Foskett, Craig & Crandall. They had no claim to even this amount of the fund, because it is no part of the partnership property, and no part of the personal property of H. Crandall, nor the result of any collections or sales of property of any kind, due to or belonging to either the firm or any one member of it. All the firm property, rights, and interests, and all the individual property, rights, and interests that H. Crandall had at the period he was responsible to them, and at the time of their levying attachment, yet remains, as a fund out of which McWilliams & Co. have a right to make their demand.
III. Abigail Crandall, as a deserted wife, in a necessitous condition, was and is entitled to the fund. Lawrence v. Spear , 17 Cal. 421. The possession of her agent, Bunn, is her possession, and the possession of money or chattels personal is prima facie evidence of ownership. Burpee and McWilliams & Co. have not overcome her prima facie right to the fund, and there can be no other adjudicationthan to sustain the judgment below.
JUDGES: Crocker, J. delivered the opinion of the Court. Cope, C. J. and Norton, J. concurring.
OPINION
CROCKER, Judge
On petition for a rehearing, Crocker, J. delivered the following opinion. the other Justices concurring:
In the petition for a rehearing filed in this case, it is urged that the conveyance from Crandall to Bunn, as trustee for his wife, was only of the interest of Crandall as a member of the firm of Crandall, Foskett & Craig, and that it only operated as a transfer of the interest he might have left after the payment of the debts of the firm, and a full settlement between the partners. We view it as a conveyance of his undivided share of the partnership property, and that, as to partnership creditors, it still continued partnership property in the hands of Bunn, liable to the partnership debts. It could not be changed from partnership to individual property, so as to affect the rights of partnership creditors in any such way. The purchase money paid to Bunn for this partnership property, whether paid with partnership means or not, stands in the place of the property as the proceeds thereof, and as a fund derived therefrom, and liable to the partnership debts the same as the property for which it was paid.
The Rehearing is Therefore Denied.