Burpee v. Bunn

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring. [197]Eoskett, Craig & Crandall were carrying on business as partners in Placer County, when Burpee, a creditor, having an individual debt against Crandall, commenced an action thereon and attached the partnership property. After the attachment, and before judgment, Crandall conveyed the property to Bunn, as trustee for his wife, and Burpee and Bunn enter into an agreement by which Bunn agrees, in consideration of a stay of execution, to pay the judgment out of the first moneys coming into his hands as trustee not covered by “ expenses and prior claims.” Burpee recovered judgment for eight hundred and thirty-seven dollars and sixty-five cents against Crandall. Eoskett and Craig afterwards purchased the property of Bunn, and paid him $1,000 therefor. McWilliams, a creditor of the partnership firm of Eoskett, Craig & Crandall, then sued the members of that firm, and attached these funds in the hands of the trustee, by serving a copy of the attachment, with notice of garnishment. Burpee then commenced this action against Bunn on the agreement. Bunn set up the foregoing facts, and paid the money into Court, after deducting two hundred and forty-nine dollars and seventy-five cents as his expenses. McWilliams and Mrs. Crandall were made defendants by order of Court, and they appeared and answered,' each claiming the money paid into Court. McWilliams recovered judgment for $1,082 83 in his attachment suit. The cause was tried by the Court, and a judgment rendered that the seven hundred and fifty dollars and twenty-five cents paid into Court by the trustee be paid to Mrs. Crandall, and that she recover her costs against McWilliams and the other parties. McWilliams moved for a new trial, which was overruled, and Burpee and McWilliams appeal from the judgment and the order overruling the motion for a new trial to this Court.

In this case there are three parties who claim the fund paid into Court, and the question to be determined is, which one of the three is entitled to it ? Eirst—Burpee claims it under the agreement made between him and Bunn, the trustee. Second—McWilliams claims it because the fund is the proceeds of the sale of partnership property, and his debt being a partnership debt, he has a prior right thereto. Third—Mrs. Crandall claims it as her property under the trust deed.

[198]