Citation Numbers: 30 Cal. 114
Judges: Sanderson
Filed Date: 4/15/1866
Status: Precedential
Modified Date: 1/12/2023
This is an action brought by Domec, a judgment creditor of the defendant Stearns, to restrain John Parrott, also a judgment creditor of Stearns, John G-. Downey, the attorney in fact of Parrott, and Thomas A. Sanchez, Sheriff of Los Angeles County, from selling, under an execution in favor of Parrott, a large amount of personal property in Los Angeles County belonging to Stearns, also to obtain the appointment of a receiver to take charge of all the real and personal estate of Stearns and to sell at private sale the personal property and pay the proceeds into Court for the benefit of the plaintiff and other judgment creditors of Stearns named in the bill, and that such proceeds, together with the rents and issues of the real estate, be applied upon the several judgments against Stearns in the order of their priority, and that Parrott and Sanchez render an account of certain moneys alleged to have been received by them. The facts upon which this relief is sought, so far as we deem it important to state them, are substantially as follows :
On the 15th of August, 1864, the defendant, Sanchez, levied an attachment upon the personal property in question at the suit of Parrott for about thirty-seven thousand dollars. On the next day Sanchez levied an attachment on the same property in favor of the plaintiff for the sum of six thousand two
On the 11th of October, 1864, Stearns executed a mortgage to Parrott of the attached property, to which the other judgment creditors assented. There is some controversy as to whether this mortgage contract was ever consummated, but for the purposes of this opinion we shall assume that it was. This mortgage was given to secure the payment of Parrott’s judgment and in default of payment on or before the 11th of April, 1865, it was therein provided that Parrott should have the power to sell in the manner provided in a power of attorney annexed to and constituting a part of the instrument, and account for any overplus to Stearns.
The instrument then proceeds to state that it is accompanied by a delivery of possession of the property and is given in consideration of the forbearance of Parrott to immediately proceed to sell under his execution and to give him full power and authority to realize his judgment by a sale of the property in whatever manner he may deem most advantageous, but in no manner to aflect the lien of his judgment upon any other property or estate of Stearns.
Then follows the appointment of Parrott as attorney in fact with full power to sell, without notice to Stearns, at public or private sale, before or after the 11th of April, 1865, in lots or parcels to suit himself, he agreeing not to sell forthwith under execution, but to dispose of the property in the manner aforesaid to the best advantage and apply the proceeds to the expense of keeping and selling and the payment of his judgment and account, and pay over to Stearns any surplus which
Next follows the written consent, to the foregoing agreement, of the plaintiff, Howard, and Phelps, Dodge & Co., in which they say that they assent thereto in consideration of the covenants and agreements to be performed by Parrott, and they agree with Parrott to hold their attachments in subordination to the mortgage, and not to run their executions against the mortgage property until the 11th day of April, 1865 ; but reserve the right to run them against any other property belonging to Stearns, and to garnishee any surplus which may remain in Parrott’s hands after he has satisfied his own judgment.
After the 11th day of April, 1865, Parrott was proceeding to sell under execution in fraud of the plaintiff’s rights under the foregoing instrument, as alleged by him, which was the immediate cause of the present action.
For the purpose of showing how the plaintiff may be injured by the course about being pursued by Parrott, the bill further alleges that the real estate of Stearns is heavily encumbered, and the only means upon which the plaintiff and Stearns can reasonably rely for the payment of the aforesaid judgments against him is the personal property in question, and that a forced sale under an execution will result in a great sacrifice. It is also alleged that Sanchez has not property sufficient nor is his official bond sufficient to answer for the damages which will result from such a sale ; but nothing is said as to the responsibility of Parrott. The bill also, in a very general way, alleges fraud and mismanagement on the part of Parrott and alleges that he had had opportunities to sell a sufficient amount of the property to pay off his own and the other judgments, but neglected to do so, and that he has already received some fourteen thousand dollars on his judgment. It is further alleged that the personal property in question is of the value of one hundred thousand dollars, and that Parrott seeks a forced sale on short notice with a view to speculative ends, etc.
On the 29th day of May following the plaintiff served a notice on the defendants to produce and file in Court, on their motion to dissolve the injunction still pending, on the 31st of the same month a bill of particulars, showing fully all their transactions in the premises; first, from the 1st day of January, 1864, until the 1st day of January, 1865, and second, from the last named day until the said 31st of May.
On the 3d of June following, plaintiff moved the Court to take up and dispose of the motion of the defendants to dissolve the injunction and vacate the appointment of a receiver. At the same time a notice was served on counsel for Parrott and Sanchez by counsel for Stearns to the effect that at the hearing of their motion on that day to dissolve the injunction, etc., Stearns would ask the Court to vacate the consent order of the 18th of April, and declare the said injunction perpetual,
The bill seems to have been filed more for the benefit of Stearns than of the.plaintiff. This is apparent from the circumstances of the case, and also from the fact that after the. quarrel was initiated, Stearns, although a defendant, seems to' have gone over to the enemy with all his forces, and thus given him whatever strength he may have possessed. Had the bill been filed by Stearns against Parrott to obtain an account and satisfaction of his judgment, on the claim that it had been paid in the mode agreed upon, there would have been form at least
The order appealed from is reversed, and the Court below is advised to dismiss the bill.