
    Thomas Harney vs. William C. Ellis, garnishee of N. K. Kellum.
    Under the statute of this state, (How. & Hutch. 557,) if the answer of a garnishee of a judgment debtor, admits an indebtedness, a judgment may be rendered therein against such garnishee; but if the answer denies an indebtedness, and there be no adverse finding of a jury, no judgment can be rendered against the garnishee.
    E., being summoned by H. as the garnishee of K., a judgment debtor to H., answered, that he bought of K. a lot of ground in Texas, and executed his note to K. for a part of the price; but that there was some doubt about the title of the lot; and that the note might have been assigned, though he had received no notice of it; H. did not contest the truth of this answer, but insisted upon a judgment thereon against E. for the amount of his judgment, which was less than the note; the court below discharged E. from the garnishment; held, that the judgment discharging the garnishee was correct; the contract between E. and K. was to be governed by the laws of Texas; and before H. could obtain a judgment upon the answer of the garnishee, it was his duty to show, that, by the laws of Texas, E. was liable to K. on the note, in question; which would not be the case, if the mercantile law prevailed in Texas, and the note had been assigned ; nor if partial failure of consideration was there admissible as a defence to the note.
    Unless the plaintiff in a judgment at law, who has summmoned a garnishee of his judgment debtor, shows himself to be entitled to the judgment by law, no judgment can be rendered for him on an answer of the garnishee, which does not admit an indebtedness.
    In error from the circuit court of Hinds county; Hon. George Coalter, judge.
    Thomas Harney sued out a garnishment against William C. Ellis, as a debtor of Nathaniel K. Kellum, predicated on a judgment for $217-51, rendered against Kellum in favor of Harney, ney, on the 27th day of May, 1836.
    Ellis answered on oath, “ that in the month of December, 1845, he purchased of Kellum, in the city of Houston, in the state of Texas, a block of lots in that city, and gave in consideration a draft on Ward, Jones & Co., of New Orleans, in said Kellum’s favor, for $450, payable about the 6th of March, 1846, which garnishee has understood was accepted and paid; and also made his own note to said Kellum for $750, payable on the 5th or 6th of March, 1847. That presently after the service of this garnishment, he wrote to Dr. Henry H. Case, of Houston, requesting him to notify said Kellum, giving him information of said garnishment, to which, also, no answer has been returned. Garnishee has never received any notice or information of any transfer of said note, by or from said Kellum, if any transfer has been made. He knows of no estate of Kellum, liable, &c. ; that the purchase by him of said block of lots, was a transaction in the state of Texas; that he has been informed that the title professed to be passed to him by said Kellum, is defective to a considerable portion of said block; and he reserves the question whether he shall be rendered answerable on said note in the state of Mississippi, inasmuch as he ought to be left free to seek a rescission of the contract with said Kellum in the state of Texas; and not be compelled, by the extraordinary process of garnishment, to a judgment before the maturity of said note, and before the expiration of the time which, by his contract, and in justice, he ought to have, to ascertain the facts on which his rights depend.”
    On the coming in of this answer, the plaintiff’s counsel moved the court below for a judgment against the garnishee; the court overruled the motion, on the ground, that the answer disclosed a partial failure of the consideration of the note given by the garnishee to Kellum, and decided, that it was competent for the garnishee to employ that defence against a note given for the purchase of said estate. Harney sued out this writ of error.
    
      Harney, in proper person.
    All the points in this case resolve themselves into one. Is the answer of the garnishee, Ellis, sufficient to protect him from a judgment in favor of the plaintiff? That it is not sufficient, and that the court below erred in overruling plaihtiff’s motion for judgment, I submit,
    1. That if any ambiguity exists in the answer, it must be taken most strongly against the respondent garnishee.
    
      2. When garnishee says “ he purchased a block of lots, that $450 of the purchase money was paid, and that the $750 note was given for the balance,” the court will presume that the purchase was evidenced in the usual way, viz., by deed with the usual covenants as to title, and that respondent was in possession of the estate.
    3. Such being the nature of that purchase, the garnishee could not avail himself of a partial failure of consideration, unless he also alleges eviction or fraud. See Abbott v. Allen's Ex'r, 2 Johns. Ch. 519; Brovm v. Smith, 5 How. 387. In Gibson v. Newman, 1 Howard, 349, the court say, “The agreement to pay by instalments, at different times, makes the covenants mutual and independent”; and'payment in part, is still inore conclusive that the garnishee did not make a good title a condition precedent to the payment of the money.
    4. In defending himself against a partial failure of consideration, this defence is no more available against a judgment creditor than it would be against the payee of the note.
    5. A plea of partial failure of consideration by the maker against the payee, is not good, unless it contain an allegation of eviction or of fraud. 2 Johns. Ch. 519. Plea of failure of title, ought to state that plaintiff warranted, &c. 4 Bibb, 347.
    6. Hence, a plea embodying the substance of garnishee’s answer would manifestly be bad, because, among other reasons,
    1st. The description of the real estate, for which in part the note was given in payment, is too vague and uncertain.
    2d. The portion of said estate to which the title is said to be “ defective,” is altogether indefinite and uncertain.
    3d. As to the defect of title, garnishee does not. aver that fact, but says “That he has been informed that the title, &c., is defective.”
    4th. He cannot plead partial failure of consideration, especially when the contract is to pay by instalments at different times, and that part has already been paid, unless he also allege eviction or fraud. 1 How. 349.
    5th. Garnishee ought to have stated that Kellum warranted the title. 4 Bibb, 347.
    7. As to that part of garnishee’s answer, in which he attempts to avail himself of the fact that the transaction was in the state of Texas, &c., it scarcely deserves a serious notice. See Story, Confl. of Laws., p. 349, 350, 461, § 549.
    In a pamphlet opinion of Chancellor Bibb, published in Louisville Ky., on the 25th of August, 1843, in the case of Louis Hath v. The President, Directors 6f Co. of the Bank of United States, Alexander Lymington, Thomas Robbins et al., the chancellor says : “ For ninety-nine years and upwards, in Virginia and Kentucky, the rule has prevailed, that a debt due to an absentee, by a person within the state, was property of such absentee within the state; and that such debt was subject to the dominion of the state, by reason of the jurisdiction of the state over persons and property being within the limits of the state.
    “ The domicil of the garnishee within the state, who is indebted to an absentee, gives locality to the property in that debt; and that locality within the state is a proper foundation for the jurisdiction of the state, and of the court of chancery, within whose jurisdiction the debtor resides, to attach such debt, and subject it to satisfy a creditor of such absentee.
    “ Neither is this policy of considering debts due to absentees by persons within the state, as property within the state subject to the dominion of the state, and to be regulated and disposed of to satisfy the creditors of such absentees, peculiar to the states of Virginia and Kentucky. It prevails in Pennsylvania, and in most, if not all, of the states of the Union.
    
      Sloan and Wharton, on same side.
    That the court below erred, see 1 Bibb, 500; 3 J. J. Marsh. 293; 4 Bibb. 346 ; 5 Monroe, 273.
    The answer does not pretend that the garnishee has been evicted from said lots and buildings, or that proceedings have been instituted against him for that purpose. It does not state whether a bond for title was given by the vendor. The presumption is, that such was the case, as the garnishee had, previous to executing his note for $750, paid $450 on account of the purchase of said buildings. If bond for title was given, the defence in the answer could not avail, because the vendee has his counter contract, on which he can make vendor liable. See Gibson v. Newman, 1 How. 341; Hageman v. Sharkey, lb. 277; Hazlip v. Noland, 6 S. & M. 294.
    In order that partial failure of consideration may be plead in an action to recover the purchase money of real estate, there should be a covenant to that effect specifically. Chaplain v. Briscoe, 5 S. & M. 198.
    
      
      A. Hutchinson, for defendant in error.
    The question, it is submitted, is not if or not in this state, Kentucky, or elsewhere, a vendee, when sued on one or two notes, given for the price of land, may defend on a partial failure of title or consideration, or be forced into equity to adjust the matter; but it is, was Ellis, the garnishee of Kellum, indebted to him when summoned by Harney, the creditor of Kellum ? No. Ellis bought lots in a city in a distant state, paid nearly half of the price by draft, and gave a note for the residue; but he, when answering, “ was informed that the title was defective to a considerable portion of said block [of lots,] and he reserves the question, whether he shall be held answerable in the state of Mississippi; inasmuch as he ought to be left free to seek a rescission of the contract with said Kellum in the state of Texas, and not be compelled, by the extraordinary process of garnishment, to a judgment before the maturity of said note, and before the expiration of the time, which, by his contract and in justice, he ought to have, to ascertain the facts on which his rights depend.” Here are facts not noticed e contra. They change the case. The title to the land could only be adjudicated in Texas; and there, if partial failure of consideration could not be heard via, ordinale, it could in equity. It comes, then, to the question, Did the garnishee owe the judgment debtor? The answer is no admission of even a prospective indebtedness; and, moreover, the just privilege of litigating the title in a distant state, possessed solely of the jurisdiction, is claimed. The answer was not subjected to an issue of fact; and the judgment upon it, discharging the garnishee, tvas not only proper but unavoidable.
   Mr. Justice Clayton

delivered the opinion of the court.

Our statute requires the garnishee, when summoned for the purpose, to state what he is indebted to the defendant in the judgment, and authorizes a judgment against him for the amount admitted to be due. If, however, the indebtedness be denied by the answer, and there be no finding of a jury against it, then no judgment can be entered against the garnishee. H. & H. 557.

In this case the answer was not contested, nor does it admit any indebtedness. It discloses the purchase of a lot of ground in the state of Texas, by the garnishee, and the execution of his note for a part of the stipulated price, but says there is some doubt about the title of the lot, and that the note may have been assigned, though no notice to that effect has been received.

The plaintiff in the execution insists upon a judgment in his favor upon the answer, because it discloses no defence to the note as between the garnishee and the original payee.

This is asking too much. The transaction took place in Texas; the note, for any thing that appears, was payable there, and the contract to be governed by the laws of that state. The plaintiff should have shown, that according to those laws operating upon the construction of the contract, he was entitled to the judgment. The laws of this state will regulate the remedy. If the note were negotiable in Texas, in the commercial sense of the term, and had been indorsed before maturity; or if a partial failure of consideration were admissible as a defence there to the note, such defence would, in either event, be admissible here. Unless the plaintiff shows himself entitled to judgment by law, none can be rendered for him. See Huff v. Mills, 7 Yerg. 42.

The garnishee does not admit any indebtedness, on the contrary, he denies it. The object here is to obtain judgment upon the admissions of the answer. Its statements do not warrant this, and the judgment discharging the garnishee is affirmed.

Judgment affirmed.  