
    [No. 1109.]
    B. REINHART et al., Respondents, v. Z. T. HARDESTY, Appellant.
    ’Gabnishmeht — Debts Not Due. — Dobts not- actually due or owing, but depending on a contingency, cannot be reached by garnishment.
    Appeal from the District Court -of the Seventh Judicial District, Elko County.
    The facts bearing upon .the question decided are sufficiently .•stated in the .opinion.
    
      Robert if. Clarke, for Appellant;
    L The statute is positive that all property not exempt may be levied upon under attachment. (Civil Pr. Act, secs. 127, 129, 219.) Under these sections a debtor can have no prop-<erty in this state not exempt from execution, which cannot be reached by attachment. (Freeman on Ex., see. 112; Davis v. Mitchell, 34 Cal. 82; Crandall v. Bien, 13 Cal. 1.5; Robinson v- Tevis, 38 Cal. 612.)
    II. E. C. Hardesty’s interest in this agreement was valuable property not exempt from execution, and could certainly be attached in some manner. It must be admitted that such interest as be had was property “ not capable of manual delivery.” His right was a valuable one, not capable of manual delivery and not negotiable. Such property can only be levied upon by garnishment, (sec. 128.) After such levy this property was held for the satisfaction of an)*- judgment that was thereafter obtained in that action. (1 Comp. L., 1184.)
    III. The lien of an attachment is destroyed by nothing but its dissolution. (1 Comp. L., 1191; Drake on Attach.; sec. 224.)
    IY. Garnishment extinguishes the defendant’s rights in the property and prevents him from making any assignment or disposition of it, which will prevent its being applied to the satisfaction of any judgment which may be obtained. (Drake on Attach., sec. 453; Freeman on Ex., sec. 41; 16 Mass. 317.) It follows that the assignment made by E. C. Hardesty to the plaintiffs in this action on July 26, 1880, and long after the garnishment was made, passed no title to them except what was subject to that garnishment. {Davis v. Mitchell, 34 Cal. 82; Crandall v. Bien, 13 Cal. 15.)
    Y. Negotiable paper not due can be levied upon by garnishment, if it is in the hands of a third person. The only reason why this cannot be done by garnisheeing the payor is, because to do so would bring it in conflict with the law merchant, which is that a bona fide purchaser in good faith of such paper takes it clear of all claims and offsets. If such paper has lost its negotiability by being overdue, or for any other reason, it can be levied upon by garnisheeing the payor as well as any other property.
    . A- C- Ellis and J, W, Dorsey, for Respondent:
    I. At the time of the levy of the execution E. C. Hardesty had no interest in the contract, of which fact defendant was duly notified, as appears in the record.
    H, The interest held by E. C. Hardesty was assignable. (Arques v. Wasson, 51 Cal. 622; 24 Am. Rep. 682; Putnam v. Cushing, 10 Gray, 334; Smith v. Beattie, 31 N. Y. 542.) The contract in question was a mere evidence of prospective indebtedness, dependent upon remote and uncertain contingencies. It depended upon the industry and intent of Z. T. Hardesty as to whether he would farm at all or not. It depended upon his integrity. It depended upon the seasons, 
      upon the rains and snows, and upon his life. If there were a breach the action would sound in damages, and the damages would be unliquidated, and hence the attachment of such a contract conferred no right. (Freeman on Ex. 161, 113, 167; Drake on Att. 481-2; Clarke v. Gibson, 12 N. H. 386; Webber v. Doran, 70 Me. 140; Orclway v. Remington, 12 R. I. 319; Maduel v. Mousseaux, 29 La. Ann. 228; Hearne v. Keath, 63 Mo. 84; Webster v. Steel, 75 111. 544; Lupton v. Cutter, 8 Pick. 302; Andrews v. Ludlow, 5 Pick. 28; Kill-more v. Howlett, 48 N. Y. 569; Davis v. Mitchell, 34 Cal. 88; 36 Cal. 321; Chandler v.. Thurston, 10 Pick. 205; Faulkner v. Waters, 11 Pick. 473; Leiuis v. Lyman, 22 Pick. 437; May v. Baker, 15 111. 90.)’ It was an executory contract that could not be enforced according to its terms. The property in the hay and grain did not pass to E. C. Hardesty, and had the hay been raised after garnishment, and destroyed, the loss would have been the defendant’s. In no court could E. C. have maintained an action for the hay. His only recourse in case of breach would lie in an action for damages. (Benj. on Sales, secs. 126, 308-9-10-11, 318, 326, 352, 353; Killmore v. Howlett, 48 N. Y. 569.) There has never been any attachment of the contract. (Freeman on Ex. secs. 128-9-30.) The defendant, on the sixteenth of December, had nothing in his hands; — neither hay nor grain — nor, as we claim, any contract. There was, not a credit nor a debt. (.Lupton v. Cutter. & Pick. 302, supra.; Freeman Ex. 112; Killmore v. Howlett, 48- N.„ Y. 569.) The attachment pro<eeeding is. not a. trustee process; it does, not fasten things, for the future, and remotely and contingently, it is. unknown to the common law; it is. strictly legal and not equitable, and being in. derogation of the common law, the statute must be strictly pursued. (Hassie v. G. L. W.. U. Cong.,. 35 Cal. 385,;. Clymer v. Willis, 3 Cal. 365; Roberts v. Landecker, 9 CaL 265;, Drake Att. 451.) But the contract was not such an one as. might have been levied on. (36 CaL 321; Haftley v. Maier, 13 Cal. 15.) This contract was not a chose in action. (2 Kent, top p.-437.)
   •By the Court,

Belknap, J.:

In the year 1878 one E. C. Hardesty sold and conveyed to Z. T. Hardesty, the defendant in-this-action, a traet of farming land. As part of the consideration of the purchase defendant agreed to cultivate* the land, and to-deliver to the grantee-stipulated portions, of the-crops-raised therein for several yearstben ensuing-.

■ Subsequently E. CL Hardesty made an assignment of' his. interest in the agreement to the plaintiffs, and they have-brought this action to recover damages- from, the defendant for his failure to deliver to them the portion of the crops, to- which, they claim to be- entitled under the assignment.

Defendant justifies his- refusal upon the- ground that in an. attachment suit, commenced by Charles. Adams, against E. C. Hardesty, the interest of the said E. C. in the agreement was. attached by notice of garnishment served upon the defendant.

At the time of the service-of the notice, to-wit: December, 16-, 1879, there had been delivered to E. C. Hardesty the* proportion of the crops, to which he was then entitled, and the-defendant had no property in his possession or under his. control belonging to him. The garnishment related to the crops, to be-thereafter raised.

The rights of the plaintiffs attached subsequently to the-service of the notice, and prior to an execution sale of the-contract to Adams, the judgment creditor.

The controlling question in the case is whether any rights, were acquired by Adams by virtue of the proceedings in attachment; if none were acquired, plaintiffs succeeded to the interest of E. C. Hardesty in the contract, and the judgment of the district court in their favor ought not to be disturbed ^

The statute touching garnishments provides as. follows :. “ Upon receiving information in writing from the plaintiff or his attorney that any person has in his possession or under his. control any credits or other personal property belonging to the-defendant or is owing any debt to the defendant, the sheriff shall serve upon such person a copy of the writ and a notice that such credits or other property or debts, as the case may be, are attached in pursuance of such writ.” “All persons having in their possession or under their control any credits, or other personal property belonging to the defendant, or owing any debts to the defendant at the time of the service upon them of a copy of the writ and notice, * * * shall be * * * liable to the plaintiff for the amount of such credits, property or debts.” * * * (Secs. 1190 and 1191, Comp. L.)

At the time of the service of the notice and copy of the writ there was nó actually existing debt between E. C. Hardesty and the defendant, and whether such a debt would ever exist depended upon all of the contingencies attending farming.

It has frequently been decided that debts not actualfy due or owing, but depending on a contingency, cannot be reached by garnishment.

Thus in an early case in Massachusetts it was sought to garnish the wages of a sailor, which were payable upon the completion of the voyage upon which he was then embarked. On the part of the trustee it was admitted that wages certainly payable, although at a future day, could be reached by attachment, but it was claimed that as payment depended upon the contingency of the vessel’s arrival, he was not chargeable. The court so held, declaring that “every debt must be either solvendum in praesenti or solvendum in futuro; must be certainly, and in all events, payable; but whenever it is uncertain whether anything will ever be demandable by virtue of the contract, it cannot be called a debt.” (Wentworth v. Whittemore, 1 Mass. 472.)

To shippers of a cargo under a contract that the owners of a ship should receive a share of the profits arising on the cargo were held not liable as trustees before the termination of the voyage.

The court said: “At the time of the service of this writ the ship had not completed her voyage; she might have- foundered or she might have brought the goods to a bad market, so that there would have been no profits. What was this at that time, if any debt at all, but a contingent one?” (Davis v. Ham, 3 Mass. 34.)

The same court, in Guild v. Holbrook, 11 Pick. 101, held that a person holding real estate upon a promise to sell it and pay over the proceeds was. not liable as trustee in a process of foreign attachment, it being' contingent whether he- would ever sell the property and receive the proceeds.

Again, in Osborne v. Jordan, 3 Gray. 277, it was held that-a party to whom the lay or share of a seaman in a whaling voyage is- assigned in trust for the assignor, is. not liable as his. trustee in foreign attachment, until' the lay is set apart and. delivered specifically, or paid over in money.

(See also: Williams v. Manston, 3 Pick, 65; Grant v. Shaw, 16 Mass. 342; Wilson v. Wood, 34 Me. 123; Burke v. Whitcomb, 13 Vt. 421; Maduel v. Mousseaux, 29 La. Ann. 228; Haven v. Wentworth, 2 N. H. 93.)

These decisions show that a garnishee cannot be charged whenever it is uncertain whether any property of the debtor will come to his hands, or whether he will ever he indebted t.o the debtor.

The crops for the years, succeeding* the service of the notice of garnishment, from famine, or other natural causes, or from artificial causes, might never have been produced. This uncertainty exempted defendant from, liability as a garnishee.

Other questions are presented, hut the views adopted by the .court present an insuperable objection to the defendant’s, recovery, and render their consideration unnecessary.

Judgment affirmed.  