Meherin v. Saunders

GAROUTTE, J. Defendant Ambrose bid $10,000 for a piece of realty at an execution sale held by a constable. He paid the constable $855 in money, and gave his cheek for the balance of the purchase price. The money paid covered the judgment and costs, and the execution was returned satisfied. Thereafter payment of the check was stopped by Ambrose, and no more money was ever received under the sale. Upon this state of facts the judgment debtor’s assignee in insolvency, the plaintiff herein, brought an action against the constable and his bondsmen, and recovered damages to the amount of the balance of the purchase price against the constable, and to the amount of $1,000 against his bondsmen. Upon appeal that judgment was affirmed by this court: Meherin v. Saunders, 110 Cal. 463, 42 Pac. 966. Subsequent to the foregoing proceedings the assignee in insolvency brought this action against the constable and the defendant Ambrose, purchaser at the sale, for the balance of the purchase price. The constable defaulted, and Ambrose now appeals from the judgment rendered against him, and also from the order denying his motion for a new trial.

There are a great number of interesting questions raised by the appeal in this case; but we refrain from discussing them, in view of another proposition urged, the disposition of which seems to finally end this litigation. By the answer of defendant Ambrose, he alleged that the insolvent debtor, represented by the plaintiff in this action, was, at the time of the constable’s sale, and also .at the time this action was brought, indebted to him in the sum of $80,000, and the evidence at the trial admits the existence of a large indebtedness. In substance, the trial court found that plaintiff’s insolvent was indebted to defendant at the time of the constable’s sale, to wit, October 24, 1891,-in the sum of $28,604, and that upon January 5, 1892, defendant proved, presented and filed his verified claim as a creditor of the insolvent’s estate for said [281]indebtedness. The court also found that subsequently defendant claimed and received a dividend based upon the amount of such indebtedness from the plaintiff as assignee in insolvency of the judgment debtor. The court then made the following finding: ‘ ‘ That the said sum for and on which the said California Steamship Company was on the said twenty-fourth day of October, 1891, indebted to the defendant Thomas Ambrose, and the said balance of said purchase price of and for said real property, so bid in and purchased by said defendant Thomas Ambrose at said constable’s sale, on said twenty-fourth day of October, 1891, was not and are not mutual debts and credits or mutual debts or credits, and defendant Thomas Ambrose did not become, or intend to become, a debtor of said California Steamship Company by reason of such purchase by him of said property, or for any part of the purchase price at which he purchased the same; that the said defendant Thomas Ambrose, when he presented, proved and filed his said claim against said insolvent corporation, said California Steamship Company, on or about the sixth day of January, 1892, did not claim that the balance-of his said bill, to wit, said sum of $9,145, for and on account of which this action was brought, or any part thereof, was a credit upon the said sum of $28,604.47, so owing by said California Steamship Company to him, and he did not allow or give or permit any credit for said purchase price so bid by him for said property, or for any part thereof.” As to that portion of this finding bearing upon defendant’s intention to become a debtor of the judgment debtor, we do not see its materiality. We are unable to see how it affects this case, • even if it be conceded that Ambrose did not intend to become a debtor of the judgment debtor when he made the purchase at the constable’s sale. Again, it is difficult to'see how any assistance to support the judgment in this case is given by a finding which declares as a fact that Ambrose did not become, nor intend to' become, the debtor of the judgment debtor when he made the purchase. If he did. not become a debtor of the plaintiff’s insolvent by his failure to pay the purchase price, we are at a loss to see how the plaintiff can support the action.