Puissegur v. Yarbrough

GIBSON, C. J.

Defendants have appealed from a judgment foreclosing, as a mortgage, a deed of trust given by them to secure their note payable in monthly installments to Mrs. M. D. Woodd. Plaintiff, a judgment creditor of Mrs. Woodd, purchased the note and trust deed at a sheriff’s sale made under a levy of execution on his judgment and thereafter brought this action claiming defendants were in default in the payment of certain installments. Defendants denied the

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default, asserting that they had paid the installments in question to one Hovey, and contending that Hovey was entitled thereto by virtue of an assignment of the note and trust deed from Woodd to Hovey.

Plaintiff’s action against Mrs. Woodd was tried in February, 1940, but, due to delay caused by a motion made by Mrs. Woodd to reopen the case after submission,. judgment was not rendered therein until April 26, 1940. Messrs. Heath and Knapp, attorneys for defendants herein, ' represented Mrs. Woodd in that action. They assigned to Hovey a claim which they had against Mrs. Woodd for legal services, and on April 11, 1940, Hovey sued Mrs. Woodd on this claim and served defendants with a writ of attachment and notice of garnishment in that action. At that time, the note was held by a bank for collection on behalf of Mrs. Woodd. On June 19, 1940, a writ of execution, issued on plaintiff’s judgment against Mrs. Woodd, was served on the bank attaching all personal property belonging to Mrs. Woodd under the control of the bank. The next day the writ was served on defendants. Thereafter, on September 15, 1940, Mrs. Woodd, who had retained possession of the deed of trust, assigned it and the note to Hovey. Subsequently, on October 17, 1940, plaintiff purchased the note at the sheriff’s sale made under a levy of execution on plaintiff’s judgment against Mrs. Woodd. On July 8, 1941, a judgment was entered in Hovey’s action against Mrs. Woodd, and a writ of execution, issued on August 5, 1942, was served on defendants, but no attempt was ever made pursuant to this levy to sell any interest of Mrs. Woodd in the note or trust deed.

Defendants apparently have chosen to rely upon the assignment of the note and trust deed by Mrs. Woodd to Hovey on September 15, 1940, rather than upon the Hovey attachment of April 11, 1940, in seeking to justify the payments made to Hovey. We must, nevertheless, consider the effect of the attachment before proceeding with a discussion of the assignment. It is unnecessary, however, to determine the validity of the levy of the attachment, concerning which there is some question because of the manner in which it was made, since it is clear from the record that any lien which Hovey may have obtained thereunder expired by lapse of time.