SHELDON v. SIMONDS, 1 Ohio Ch. 724

Wright, J. The simple question here is, was Sheldon when summoned in as garnishee indebted to J. S. the defendant in attachment? The purchase he made was of the land; for that he gave his note. The conveyance to him of this land was subject to the lien of another for a greater sum than was due of the purchase-money. In justice and equity, then, he owed nothing until the incumbrance was removed, and J. S. could not, though the note was over due, compel him to pay without discharging the incumbrance — without that, there was a failure of consideration.

The attaching creditor by operation of law was substituted to his debtor’s rights — stood in his shoes. He acquired no new right. If then this incumbrance and payment would have been good against J. S. it was equally good against Simonds. The judgment of the Common Pleas is reversed, and final judgment is rendered here against Simonds for costs, that being the judgment the Common Pleas should have rendered.