Payne v. Woodhull — 13 N.Y. Super. Ct. 169

Majority

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Esther Payne v. William Woodhull and Joseph S. Ridgway.

Headnote

By the true construction of the act of July 29, 1848, and of other acts of Congress, a widow to whom a pension has been granted for the services of her husband cannot pledge the certificate by anticipation to an agent employed to obtain the pension, to secure to him a compensation for his services.

Such a pledge, no matter to whom made, or for what purpose, is wholly void.

Hence, if the agent refuse to deliver the certificate, upon request, he is liable in an action for the recovery of its value or of damages resulting from its detention.

Judgment, sustaining a demurrer to the answer of the defendant Ridgway, afiirmed with costs.

(Before Oakley, Ch. J., and Slosson, J.)

General Term,

October, 1856.

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Appeal, by the defendant Ridgway, from a judgment entered upon the decision of Justice Hoffman at Special Term, on the 6th of March, 1856, in favor of the plaintiff.

The case arose upon a demurrer by the plaintiff to the answer of the defendant Ridgway.

The following are the pleadings:—

The complaint of the above-named plaintiff respectfully shows that the defendants have become wrongfully possessed of, and wrongfully detain from the plaintiff, a certain certificate, the property of the plaintiff, dated the ninth day of June, in the year 1853, issued to the plaintiff by the government of the United States, for a pension of three hundred and three dollars and thirty-three cents per annum, under an act of Congress relating to pensions, of the third day of February, 1853.

And this complaint further showeth, that said pension certificate is of value to the plaintiff; that said pension is payable semi-annually; and the plaintiff, in consequence of the detention of said certificate from her, has been, and is compelled, as each installment of pension becomes payable to her, to forward proof in writing, and by her affidavit, to the commissioner of pensions at the city of Washington, of said detention, in order to draw such installment, in the absence of said certificate, thereby being put to inconvenience, delay, and expense.

Wherefore the plaintiff demands that the defendants may be adjudged to deliver to the plaintiff the said pension certificate, and to pay .to the plaintiff damages for the detention thereof, to the sum of two hundred dollars, with costs of this action, and that said pension certificate may be forthwith delivered to the plaintiff.

Yajst Schaick & Devekeux, plaintiff’s attorneys.

The answer of Joseph S. Ridgway, one of the defendants above named, by David P. Hall, his attorney, to the complaint in this action respectfully shows to this court:

That the said defendant answering, admits that he has become possessed of a certain certificate, mentioned and described in the complaint herein; but this defendant, further answering, avers that he became possessed thereof in his professional capacity of attorney, and alleges that some time in the autumn of the year one

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thousand eight hundred and fifty-two, this defendant was employed by William Woodhull, one of the defendants above named, then acting as the attorney in fact for the above-named plaintiff, as hereinafter set forth, to procure for the said plaintiff a pension from the government of the United States; that said William Woodhull had been, prior to the time of such employment as aforesaid, to wit: on or about the seventh day of February, one thousand eight hundred and fifty-two, appointed by said plaintiff her attorney, for the purpose, among other things, of obtaining for the said plaintiff a pension from the government of the United States, and that he acted in the premises as such attorney as aforesaid, under and by virtue of a power of attorney in writing, duly made and executed by the said plaintiff on or about the day last aforesaid; and that until the aforesaid certificate was received by the defendant, as hereinafter stated, the said power of attorney continued and remained in full force and effect, not revoked or annulled; that this defendant, in pursuance of such employment, thereafter in the month of April, one thousand eight hundred and fifty-three, presented the claim of said plaintiff for a pension, under the act of Congress, approved February 3, 1853, and that the said claim was allowed, and the aforesaid certificate issued and transmitted by the commissioner of pensions at Washington, B. C., to this defendant at the city of 2ÑTew York, at which last-mentioned place said certificate was received by this defendant, on the thirteenth day of June, one thousand eight hundred and fifty-three, and of which said receipt of said certificate, said plaintiff was within a few days thereafter notified; that there remains due and unpaid to this defendant, on account of his services in the premises, the sum of fifty-five dollars, payment of which has been demanded of and from said plaintiff, and refused; and that this defendant claims as attorney, as aforesaid, to have a hen upon the aforesaid certificate therefor, and the right to retain said certificate in his possession until said sum, with interest, shall have been paid.

And this defendant further answering, denies that he wrongfully detains from the said plaintiff the said certificate, but on the contrary avers that at or about the time the claim of said plaintiff for a pension was presented as aforesaid, it was agreed by and between William Woodhull, attorney for said plaintiff as aforesaid, and this defendant, that inasmuch as said plaintiff was, as it was

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at the time represented, in reduced circumstances, and unable to advance an amount of money sufficient to defray the actual and necessary disbursements consequent upon said application, this defendant should and would advance the same, and that'in the event of said claim being allowed, that this defendant should retain in his possession the certificate issued thereupon, until the amount of said disbursements and the fee of this defendant in the premises should have been fully paid and satisfied.

And this defendant, further answering, avers that said certificate remained in the possession of this defendant, and as he is informed and believes, with the knowledge and assent of said plaintiff, from the time it was first received by him as aforesaid, until the seventh day of September, one thousand eight hundred and. fifty-three, when this defendant delivered the same to the plaintiff; that the said plaintiff thereupon on the day last aforesaid, made and executed a power of attorney, authorizing William Woodhull, one of the above-named defendants, to receive from the United States Pension Agent, in the city of Hew York, the installment of pension due to the plaintiff on the fourth day of said September; and that the said plaintiff thereupon, on the same day, returned said certificate to this defendant. And that the said plaintiff then and there agreed to and with this defendant, that out of the installment so to be received, said Woodhull should pay a portion of the amount due this defendant; for the services and disbursements in the premises, and that this defendant should retain in his possession the said certificate, until payment and satisfaction of the entire amount thereof, had been made by the said plaintiff to this defendant.

And this defendant further answering, admits that the said certificate is of value to the plaintiff, and that the said pension is payable semi-annually.

And this defendant further answering, avers that he has no knowledge sufficient to form a belief whether the said plaintiff, in consequence of such alleged detention, is or has been compelled, as each installment of pension becomes payable, to forward proof in writing, and by her affidavit to the Commissioner of Pensions, at the city of Washington, of said alleged detention, in order to draw such installment in the absence of said certificate as in the said complaint it is alleged, or whether the said plaintiff has been,

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or is thereby put to inconvenience, delay, and expense, as is also in said complaint alleged, and he therefore denies each and every of said allegations. Thereupon, this defendant prays judgment that the said complaint be dismissed, with costs.

The plaintiff demurs to the separate answer of the defendant Ridgway, because the same is insufficient. °

D. P. Hall, for appellant.

Devoreux, for respondents.

The question is, Whether a widow, entitled to a pension under the act of February 3d, 1853, (10 U. S. Stats, at large, 154,) can pledge her certificate to the person who acted as her attorney in procuring the pension from the government, as security for the payment of his compensation for such service ?

The act of 1853 merely declares that the widows of officers, etc., who were married subsequently to January, 1800, “ shall be entitled to a pension in the same manner as those who were married before that date.”

The only previous act which regulates pensions to widows, in respect to the period of their marriage, is that of July 29th, 1848, (9 Stats, at large, 265,) which secures the right to widows who had been married before 1st of January, 1800.

By this act, (§ 2,) “ any pledge, mortgage, sale, assignment, or transfer of any right, claim, or interest, in any way granted by this act,” is declared to be “ utterly void, and of no effect,” and it is further provided, that the annuities or pensions granted by the act “ shall not be liable to attachment, levy, or seizure by any process of law or equity, but shall come wholly to the personal benefit of the pensioner or annuitant entitled to the same.”

The defendant contends that the plaintiff having obtained her certificate from the government, it is “property,” and, as such, is distinguished from a “ right, claim, or interest” in or to a pension, and that being the plaintiff’s property, she had as much right to dispose of it by way of pledge, as she would have to dispose of the money when received upon it; and he claims that this construction is apparent from the language of this and other acts on

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this subject. Thus, while the act of 1848 declares void any pledge of a right, claim, or interest, in a pension, it exempts from attachment, levy, and seizure, the pension itself. So in the act of July 7, 1888, (5 Statutes, at large, 303), a pledge of any right, claim, or interest in a pension, is declared to be invalid, while the pension itself is declared not to be liable to levy, etc.; and the defendant contends that Congress intended a distinction between the right to an interest in a pension and the pension itself, and that the policy and intention of the Pension Statutes was to protect persons entitled to pensions from their own acts, only during the time in which their right to the pension should remain unascertained, and afterwards from the acts of other parties only.

A careful examination and comparison of the various statutes on this subject has led us to a different conclusion.

Provisions, substantially similar to those contained in the acts .of 1838 and 1848, both of which are confined to the case of widows, are to be found in almost all the pension acts, and to our minds it is very apparent that Congress intended, in all these cases, to secure the benefit of its bounty to the pensioner personally, and to place it wholly not only beyond the reach of creditors, but beyond the consequences of any act of his own to which he might be tempted from necessity, weakness, or improvidence. Thus, in the first of the pension acts, 23d March, 1792, (1 Statutes, at large, 245,) it is declared that “no sale, transfer, or mortgage of the whole, or any part .of the pension, or arrearages of pension, payable to any soldier, or before the same shah become due, shall be valid; and every person claiming such pension, or arrearages of pension, or any part thereof, under a power of attorney or substitution, shall, before the same is paid, make oath that such power or substitution is not given by reason of any transfer of such pension or arrearages of pension and it is declared to be perjury to swear falsely in the matter.

A similar provision is found in the act of April 10, 1806, (2 Statutes, at large, 376, 5, 8.) So by section 4 of the act of March 18, 1818, (3 Statutes, at large, 410,) it is provided that “ no sale, transfer, or mortgage of the whole, or any part of the pension, payable in pursuance of the act, shall be valid.”

So by section 4 of the act of May 15, 1828, (4 Statutes, at large, 269,) it is provided that “the pay allowed by the act shall not im

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any way be transferable or liable to attachment, levy, or seizure, by any legal process whatever, but shall come wholly to the personal benefit of the officer or soldier entitled to the same by the act.”

So by section 4 of the act of July 4, 1836, (5 Statutes, at large, 128), providing for half-pay to widows of officers, or who have died in the United States service since 1818, it is declared that any pledge, mortgage, sale, assignment, or transfer, of any right, claim, or interest (the words used in the act of 1848) in any money or half-pay granted by the act, shall be utterly void and of no effect;” and then it is provided, that where the application for the money is made by the attorney, such attorney, before a warrant shall be delivered to him, shall make oath that “he has no interest in said money by any pledge, mortgage, sale, assignment, or transfer, and that he does not know or believe that the same has been so disposed of to any person whatever.”

So by the act of July 7, 1838, before referred to, it is declared that a sale or pledge of any right, claim, or interest, in any pension or half-pay, is invalid, and the pension and half-pay are declared to be exempt from any liability to levy, etc., but to come wholly to the personal benefit of the pensioner or annuitant; and where the pensioner applies for payment by attorney, such attorney is to make oath “that he has no interest in said money by any pledge, surety, transfer, agreement, understanding, or arrangement, and that he does not know or believe that the same has been so disposed of to any other person.”

We think these various provisions speak a very plain and intelligible language, and indicate a uniform and consistent policy in the legislature which enacted them; and when it is considered that these pensions are payable annually, and designed for the benefit of a needy, aged, and in many cases, feeble and helpless class of persons, it is quite apparent that Congress never intended, in these various provisions, any such distinction between the right to a pension to be granted and the pension itself when granted, as is contended for, and that the words “right, claim, or interest,” are to be taken in a distributive sense, and to mean that no portion or share of, or interest in a pension already granted, as well as no right in a pension to be granted, shall be sold or hypothecated by the beneficiary. Indeed, the language of the act of 1848

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seems to admit of no other construction; it is, that ne pledge, etc., of any right, claim, or interest, in any way granted by this act, shall be valid. The right granted is to receive so much money a year by way of pension, and the interest of the annuitant in the grant is the property which he has in such right, that is, in the pension itself. The right to have a pension declared in her favor, as coming within the class of pensions described in the act may be included, but to restrict it to that would, in our judgment, be doing violence to the good sense and evident policy of the statute itself.

On the whole, we think clearly that the agreement, by way of pledge, set out in the answer, comes within the prohibition of the statute, and that the demurrer was, therefore, well taken.

Judgment at Special Term affirmed.