Commercial National Bank v. Kirkwood , 1896 Ill. App. LEXIS 437 ( 1896 )

Mr. Presiding Justice Harker

delivered the opinion of the Court.

The controversy in this case is over funds held in' the hands of Jefferson Orr, a garnishee, as purchase money for lands conveyed by Allen C. Rush, a defendant in an attachment suit by appellant. Before service upon the garnishee, he had agreed in writing to pay to individual creditors of Bush,- the funds in controversy. The judgment of the trial court to so pay them was in effect a holding that the agreement between Orr and Bush was such an appropriation of the funds in the hands of Orr in favor of the individual creditors named, as to place them beyond the reach of appellant’s garnishee process.

It is insisted by appellant that the funds were liable to its process because the intervenors had not accepted the provisions of the contract between Bush and Orr, whereby the latter was to pay them, and that before there could be an equitable assignment of the funds to carry it beyond the control of Bush, or his attaching creditors, there must have been a total extinguishment of the old debts and a substitution of the new obligation.

The evidence shows that while the purpose of the contract was to protect Orr, it was, in effect, one for the benefit of Bush’s individual creditors. By it the funds were taken out of the control of Bush. The creditors named were notified by Orr before he was served with the garnishee process and some of them demanded payment. Qrr promised payment in accordance with the writing when it should be determined that Bush’s title to the land was clear and free from all claims that could prejudice the rights of a purchaser.

Under the circumstances it was not necessary that the creditors should have relinquished all claim against Bush. All that was necessary on their part was an acquiescence in the arrangement made by the agreement; Bush was then in no position to rescind' the contract.

The intervenors were not prejudiced in their right to the fund by filing their claims with the assignee of Kirk-wood, Miller & Co. That did not estop them from claiming that they had acquiesced in the agreement between Orr & Bush.

Bush having by his agreement parted with his right to control the fund in Orr’s hands, the appellant, as an attaching creditor, had no right to it. A garnishing creditor can have no greater right to recover from the garnishee than the debtor has. Webster et al. v. Steele et al., 75 Ill. 544; Richardson et al. v. Lester et al., 85 Ill. 55.

We see no error in the judgment appealed from. The judgment is affirmed.