West v. Brison

• Decision Date: 24 February 1890
• Citation: 13 S.W. 95,99 Mo. 684
• Court: Missouri Supreme Court
• Parties: WEST, Public Administrator, v. BRISON.

13 S.W. 95

99 Mo. 684

WEST, Public Administrator, v. BRISON.

Supreme Court of Missouri.

February 24, 1890.

POWERS OF ADMINISTRATORS — RELEASE OF SURETIES — PRESUMPTION OF PAYMENT.

1. Plaintiff, as administrator de bonis non, obtained judgment against a former administrator and his sureties. Execution was issued on the judgment, and levied on property of the principal and the sureties sufficient to satisfy the judgment; but the execution was recalled by plaintiff, who extended time to the principal, and took a deed of trust from him as additional security, and notified the sureties that they were released. The sureties acted on the assurance that they were released, and the principal became insolvent. Held, that plaintiff, as administrator, had the power to extend the time, and give the release, and that the sureties were thereby discharged.

2. No presumption of payment of a judgment will arise from lapse of time short of 20 years; but it is not necessary, to make out a plea of payment, that payment should be positively shown; it may be presumed from lapse of time short of 20 years, with other circumstances tending to show payment.

Appeal from circuit court, Cass county; D. A. DE ARMOND, Judge.

Wooldridge & Daniel, for appellant. W. J. Terrell and Bailey & Burney, for respondent.

BLACK, J.

On the 7th May, 1872, letters of administration were issued upon the estate of James R. Cline to his widow, Nettie Cline, and her father, James Blair, Jr., and they gave bond in the sum of $35,000 for the performance of their duties, with James Blair, Sr., William T. Brison, J. C. and A. H. Boggs, and G. W. Feely as sureties. The letters of administration were revoked in May, 1873, and the estate ordered into the hands of Newton P. Brooks, public administrator of Cass county. On the 6th September, 1873, Brooks, as such administrator, recovered a judgment against the former administrator and administratrix, and the sureties on their bond, in the sum of $10,611.40. Brooks died in 1879, and Cummings was appointed administrator of the Cline estate; but he died before he entered upon the discharge of his duties, and in February, 1880, the Cline estate was ordered into the hands of the present plaintiff, public administrator. William T. Brison, one of the sureties of Cline and Blair, Jr., died in 1885, and Lucy H. Brison is the administratrix of his estate. In the year last mentioned, the plaintiff presented the judgment before mentioned for allowance against the Brison estate, and the probate court allowed the demand in the sum of $3,517, and the defendant appealed. A trial anew in the circuit court resulted in a judgment for defendant, and the plaintiff appealed to this court.

The defenses set up to the demand are: First, payment; and, second, that Brison, as a surety on the bond, was released and discharged from all liability by Brooks, the former administrator de bonis non.

The further facts disclosed by the evidence are in substance as follows: An execution was issued upon the judgment against Cline and Blair, Jr., and their sureties, on 9th September, 1873, and levied upon real estate of the principals and sureties, of a value more than sufficient to pay the judgment. This execution was returned not satisfied, and without a sale, on the 23d January, 1874, by order of Brooks, the plaintiff therein. On the 6th day of September, 1876, one day before the judgment lien expired, Nettie Cline and Blair, Jr., being joined by the widow of James Blair, Sr., executed to Brooks, administrator de bonis non of the Cline estate, a deed of trust to secure the balance then due upon the judgment. This deed of trust included the property of the principal debtors, which had been levied upon, except one parcel, which had been sold, and the proceeds applied on the judgment, and also property belonging to them not covered by the lien of the judgment. There was also included therein the property known as the "Blair Hotel," in Harrisonville, which belonged to James Blair, Sr. A recital in the deed of trust states that $7,752.40 had been paid on the judgment. The annual settlement of Brooks as administrator, made in April, 1878, more than a year and a half after the date of the deed of trust, shows a payment to him by Blair, Jr., in allowed demands procured and turned over to Brooks, in the sum of $3,486.59. Defendant insists that this payment was additional to that recited in the deed of trust, and plaintiff contends that it was a part thereof. The settlement of Brooks, filed in 1879, shows a further payment of $1,562.45. In 1882, and after the death of Brooks, the present plaintiff caused the property in the deed of trust to be sold; the sale producing only the sum of $2,384. The evidence shows that Blair, Jr., acting for himself and Mrs. Cline, had frequent interviews with Brooks from and after the levy of the execution, in 1873, with a view of saving the sureties; and the evidence tends to show that Brooks agreed to give these principal debtors time to pay off the debts of the Cline estate, and to take the receipts of Mrs. Cline, for herself, and as guardian of her child, for any balance, provided the probate court would accept these receipts in the final settlement to be made by Brooks. Pursuant to this arrangement, Mrs. Cline and Blair, Jr., made the payments mentioned in the deed of trust, amounting to $7,752.40, and then executed the deed of trust to secure the balance due as the judgment; but Mrs. Cline did not produce the receipts. There is other evidence to the effect that Brooks, as administrator de bonis non, on various occasions, extending over a period of three or four years from 1873 or 1874, stated that Mrs. Cline and Blair, Jr., had made arrangements to pay off the debts of...