Osborne v. Wainwright

By the Court : In the decree in the divorce suit, it was provided in effect that if Bussche, who claimed to have purchased the Tyler Street lot from the husband, should finally recover the lot, or if it should be amicably arranged between the parties, “ so that the contract of sale shall be carried into effect,” in that event two-thirds of the purchase money, or the securities therefor, should be paid to the wife, “ or secured in her name,” and the remaining one-tliird should be paid or secured to the husband. Bussche was a party to the action, and was therefore bound by the judgment. The present proceeding is a motion by the wife for leave to proceed on the judgment, notwithstanding more than five years had elapsed between the entry of the judgment and the commencement of this proceeding. It appears from her affidavit in support of the motion, that the controversy with Bussche was amicably settled, and that she and her husband united in a deed to him or his assignee for the Tyler Street lot in consideration of $12,000, which was the purchase price; of which sum, $4,000 was paid in cash, and two promissory notes, each for the sum of $4,000, were executed and delivered by the purchaser; that the cash was paid and the notes delivered to the husband, and that no part of the money or of the proceeds of the notes was ever received by the wife. It does not appear from the affidavit, or otherwise, whether the money was paid and the notes were delivered to the husband against the consent of the wife. The husband having died long after these transactions, notice of the motion was served upon his executors; and the wife also having died pending this proceeding, it is now prosecuted in the name of her administrator. But neither Bussche or his assignee (to whom the deed was made) is a party to the proceeding. ?

On these facts, if the money was paid and the notes delivered to the husband with the consent of the wife, the judgment or decree has spent its force, and nothing more remains to be done or could be done under it. Under these circumstances, if the husband has failed to account to the wife for her share of the money, and the proceeds of the notes, she might have had her [315]action against him. for money had and received to her use. On the other hand, if the money was paid and the notes delivered to the husband without her consent, her remedy, if any she has, under the judgment, is against Bussche or his assignee, whose duty it was to distribute the money and notes in accordance with the terms of the decree. But neither Bussche or his assignee is .a party to this proceeding, and the motion for leave to proceed on the judgment could not be entertained, until they are brought before this Court. But we are not to be understood as intimating an opinion that if they were before the Court the motion should prevail. All we intend to decide is, that until they are made parties the Court below could not properly have considered the motion.