Crawford v. Schmitz

Waterman, J.

Appellant has urged in his brief, that a judgment against an insane person upon whom process has been duly served, is • not necessarily void, and that when it appears that all the proceedings were regular and the judgment itself just and equitable, a purchaser thereunder will be protected both at law and equity, and he also discusses the situation in which purchasers at execution sales stand, and insists that, as Crawford would have been bound by his bid and could not have had the sale set aside, if the property he purchased had proven entirely different from what he expected, and was, therefore, worthless, he is consequently entitled to hold all that he unexpectedly found in the trunk, the contents of which, according to the terms of the sale, he declares that he purchased.

We have not considered these contentions of appellant, because we do not think they are involved in this case. What appellant obtained possession of by virtue of the purchase he made, which is the subject-matter of this litigation, are things not subject to sale upon execution. This bill was brought to recover either choses in action themselves, or the proceeds thereof, from the appellant, who had converted such choses to his own use.

Choses in action are not subject to seizure and sale pnder execution. Such is the rule of the common law, which has never been changed in this State. Freeman on Executions, Sec. 112; Herman on the Law of Executions, Sec. 122; Ingalls v. Lord, 1 Cow. 240; Smith v. Kennebec R. R. Co., 45 Me. 547.

Appellant obtained by his purchase neither right nor title in or to any of the bonds, notes, coupons or deeds which he found in the trunk. Notwithstanding the possession he obtained, all these choses in action remained the property of the insane Gehrig, and appellant in converting them to his own use, took the proceeds, as he did the choses themselves, in trust for the true owner.

It is insisted in this court that the complainant below had a' plain and adequate remedy at law, and that therefore this suit can not be maintained. The objection made comes too late.

The Supreme Court of this State, in the case of Dodge et al. v. Wright et al., 48 Ill. 382, say: “We have several times held that except in those cases where the subject-matter is wholly foreign to the jurisdiction of a court of chancery, and incapable of being properly brought before it, even by consent, the objection that there is an adequate remedy at law must be insisted upon in the Circuit Court; and if not, it will he considered as waived when brought here. The subject-matter of the bill in this case is not wholly foreign to the jurisdiction of a court of chancery, and the objection that there is a complete and adequate remedy at law, should have been raised in the Circuit Court. As it was not, it will be considered as waived in this court.”

Appellant, if he meant to insist upon the defense that the complainant had a plain and adequate remedy at law, should by proper pleading have insisted upon such defense in the court below. Magee v. Magee, 51 Ill. 500; Hickey v. Forristal et al., 49 Ill. 256; Whittington v. Ross, 8 Ill. App. 234; Daniell’s Chancery Practice, 551-555.

The subject-matter of this litigation is not wholly foreign to the jurisdiction of a court of equity, but is of that class over which a court of equity will always take jurisdiction when the relation of the parties to each other and the subject-matter of the controversy render such jurisdiction necessary; and in such case the objection that there was a complete remedy at law, comes too late after an answer has been filed in which this objection is not taken. It is said in Daniell’s Chancery Practice, that the court having general jurisdiction will exercise it save in cases where no circumstances whatever can give the court jurisdiction, unless the objection on the ground of jurisdiction is taken in proper time, either by demurrer, plea, or in the answer. Daniell’s Chancery Practice, page 555.

To the same effect is the case of Stout et al. v. Cook, 41 Ill 447; and also Cutting v. Dana, 25 N. J. Eq. 265; Marsh v. Haywood, 25 Tenn. 209; Lishey v. Smith, 26 Tenn. 298.

It may be the case, as is suggested, that an action for money had and received, could have been maintained against Crawford, but the action for money had and received is an equitable action; the plaintiff must show that he has equity and conscience on his side; that its subject-matter is not entirely foreign to a court of equity. Pease v. Barber, 3 Caine’s Reports, 266; Knapp v. Hobbs, 50 N. H. 476; Eddy v. Smith, 13 Wend. 489; Moses v. MacFarlain, 2 Burr, 1005, 1112; 2d Chitty on Contracts, 898.

The decree of the Circuit Court is affirmed.

Deoree affirmed.