Booker v. Armstrong
| Decision Date | 20 June 1887 |
| Parties | Booker, Administrator, Appellant, v. Armstrong, Administrator |
| Court | Missouri Supreme Court |
Appeal from Marion Circuit Court. -- Hon. Theo. Brace, Judge.
Reversed and remanded.
Harrison & Mahan and W. M. Boulware for appellant.
(1) The court erred in refusing to credit the estate of Wm. Booker late executor of Grove, with the amount charged on the inventory on account of the Pogue note. (2) If the estate of the executor is chargeable on account of the Pogue note, it is only by reason of the Wardlaw deed of trust, and is chargeable only with what a sale under said deed, made within a reasonable time after the deed came to the hands of the executor, would, under all the circumstances, have realized on the note. (3) The transfer of the note to Lakenan successor of the executor, carried the deed with it, and the estate of the executor cannot be charged with the note on account of the deed unless, first, the security was sufficient to pay the debt, and, second, unless it had, at the time of transfer, become unavailable by reason of the running of time. (4) The right of action under the deed had not been barred by the running of time. The statutes of limitation apply to actions to foreclose mortgages. Bush v. White, 85 Mo. 339; Johnson v. Johnson, 81 Mo. 331. The statute applicable is that relating to actions concerning land. There must be possession in the mortgageor before the statute will begin to run. Bush v. White, supra. The evidence shows that neither Wardlaw nor his representatives were, at any time, in possession of the land and, after the death of Grove, they never paid any taxes thereon, made any claim thereto, and never exercised any acts of ownership over it. The court erred in refusing appellant's ninth and tenth instructions. Locke v. Caldwell, 9 Central Law Journal, 351; Chouteau's Exr's v. Burlando, 20 Mo. 488; Bollinger v. Chouteau, 20 Mo. 93; McNair v. Lotts, 34 Mo. 285; Waldo v. Rice, 14 Wis. 286; Lingan v. Henderson, 1 Bland, 286; Browne v. Browne, 35 Am. Rep. 97; S. C., 17 Fla. 607; Bizzle v. Nix, 60 Ala. 281; S. C., 31 Am. Rep. 38; Arrington v. Lissom, 8 Am. Law Reg. [N. S.] 123; S. C., 14 Cal.; Insurance Company v. Brown, 3 Am. Law Reg. [N. S.] 46; Pratt v. Huggins, 29 Bart. 282; 2 Hill Mort., ch. 25; 2 Washburn Real Est., 169, sec. 25, pp. 170-3. (5) The deed of trust passed the legal title to Price, the trustee, and, in the absence of actual possession of the land by Wardlaw, or his representatives, and of any acts of ownership by him or them over the land, the legal possession followed the title, and was in Price, for the beneficiary in the deed, and during such time the statute of limitation did not run in favor of Wardlaw, or his representatives, against ejectment by said trustee or foreclosure by said beneficiary. The court erred in refusing appellant's tenth instruction. (6) The appellant cannot, in this proceeding, plead the statute of limitation in behalf of Wardlaw's representatives against the deed of trust. The court erred in refusing appellant's eighth instruction. (7) The non-residence of the heirs of Wardlaw prevented the running of the statute against the deed of trust. (8) The court erred in refusing the thirteenth instruction. The acts of the executor, in paying taxes on the land, claiming it as belonging to the estate, and putting it in the hands of an agent to protect it from trespassers, constituted actual proprietorship by him. (9) The evidence in this case was sufficient to rebut the presumption of payment, and to show that the indebtedness had not been paid. (10) The court erred in charging as a debit against the estate of said executor the sum of $ 3,229.30 as interest. The executor was not chargeable with interest on assets in his hands, unless he used said assets in his own business, or received interest thereon. (11) The court erred in refusing to allow the estate of said executor credit on account of taxes paid by said executor on the lands conveyed by Wardlaw, by deed of trust, to secure the said note of Pogue to Grove, amounting to the sum of $ 2,415.53. (12) The court erred in refusing to credit the estate of said executor with the several amounts credited and allowed to said executor by the probate court on his several annual settlements, and credited to his estate on the final settlement in said court, on account of services rendered the estate of Grove by said executor, amounting to the sum of $ 7,212.47. There was no evidence in the circuit court as to the extent or value of the services of the executor. And the action of the probate court, in allowing the credits on the annual settlements, was judicial and prima facie correct. It was subject to review on final settlement in the nature of a surcharge, and could be set aside under, and only under, evidence to the contrary. West v. West, 75 Mo. 208; Seymour v. Seymour, 67 Mo. 303; Richie v. Withers, 72 Mo. 559; Picot v. Biddle, 35 Mo. 29.
Geo. P. Strong for respondent.
(1) The appellant is not entitled to a credit for the amount of the note of Geo. B. Pogue. It came into the executor's hands with the deed of trust upon the Wardlaw lots to secure it and was inventoried by him as assets of the estate in October, 1867. The burden of showing that it "was impossible" for the executor to have collected "the claim by the exercise of due diligence," rested upon him. He furnished no proof that it was uncollectible. The proof was ample and uncontradicted, that the lots embraced in the deed of trust were worth nearly two thousand dollars more than the amount due on the note, as late as 1871. R. S., sec. 240; Williams' Adm'r v. Heirs of Pettigrew, 62 Mo. 460. The executor's estate should be charged with the amount of the Pogue note, and interest up to the date of filing his final settlement. The interest is as much a part of the note, lost by his maladministration, as the principal. Madden's Heirs v. Madden's Adm'r, 27 Mo. 546. (2) The executor's charge of $ 2,415.53 for taxes paid on the Wardlaw lots, embraced in the deed of trust given by Pogue and wife, and Wardlaw and wife, to secure the Pogue note, was properly disallowed by the circuit court. The payment of these taxes could not possibly be of any benefit to the estate, unless the proceeds of the lots, or a title to them, was secured by a sale under the deed of trust. This the executor neglected to secure, and thereby made the payment of them a clear loss to the estate of the full amount paid, $ 2,415.53. He should receive no credit for any part of it. The authorities cited under the first point sustain respondent's proposition in the second point. The payment of this $ 2,415.53 was lost to the estate by the executor's failure to secure the land or its proceeds by a sale, while the note was in force as a valid claim. (3) The charge of $ 8,712.47, made by the executor over and above his commissions for the care of the estate, was without any authority in law. It is made up by charging nine hundred dollars per annum for the first and second years of his administration, and three dollars a day, or nine hundred and thirty-nine dollars for three hundred and thirteen days in each year, from the fourth to the ninth year, both inclusive, and five hundred dollars for the tenth year, and seven hundred and fifty dollars for the eleventh year, to which $ 18.95 has been added by his administrator, the appellant. All these charges were properly disallowed. The court did allow full commissions of five per cent. on all disbursements, making two thousand and seventy-five dollars, and an additional sum of one thousand five hundred dollars, a very liberal allowance, for the care of the real estate. In all this the court committed no error. R. S., sec. 229; Gamble v. Gibson, 59 Mo. 585; Williams v. Heirs of Pettigrew, 62 Mo. 450; Hawkins v. Cunningham, 67 Mo. 415; Julian v. Abbott, 73 Mo. 580, see instruction approved; Foster v. Davis, 46 Mo. 268. (4) The charge of nine hundred and fifty dollars for interest on advances has no foundation to rest upon. The executor made no advances. He was largely indebted to the estate during his entire administration, as appears from the judgments of the probate and circuit courts. The claim was properly disallowed. (5) The estate was not bound to accept the Pogue note, after it was barred by limitation, nor to take the chances of making anything out of the deed of trust. It was the executor's duty to enforce the deed of trust, before the note was barred. He cannot discharge his liability for the loss occasioned by his negligence, by turning over to his successor a worthless note and deed of trust. There was no acknowledgment of the debt, after the note came to the executor's hands. All remedy on both note and deed of trust was lost by the lapse of ten years. R. S., sec. 3229; Harris v. Mills, 28 Ill. 44; March v. Mayers, 85 Ill. 177; Demarest v. Wyncoop, 3 J. Ch. R. 129; Giles v. Baremore, 5 J. Ch. 545; Nash v. White, 3 Bro. 289; Jackson v. Wood, 12 J. Rep. 242; Collins v. Torry, 7 J. Rep. 283; 2 Washb. on Real Prop. [4 Ed.] top p. 183-4; Wood v. Augustine, 61 Mo.App. 50; 2 Washb. on Real Prop. [4 Ed.] top p. 181, et seq.; McNair v. Lott, 34 Mo. 302; Cape Girardeau Co. v. Harbison, 58 Mo. 96; Bush v. White, 85 Mo. 339; Johnson v. Johnson, 81 Mo. 331. (6) At the final settlement the court has the power of correcting errors, and supplying omissions, in the annual settlements. The theory of final settlements is, that the court makes them, allowing what seems to be lawful and right, and disallowing what is illegal or improper. On appeal, the circuit court tries the case de novo, with the same powers that the probate court possessed. Parties should not be bound by proceedings at the filing of annual settlements, of which no notice is given. ...
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