Brown's Adm'r v. Finley

• Court: United States State Supreme Court of Missouri
• Citation: 18 Mo. 375
• Parties: BROWN'S ADMINISTRATOR, Plaintiff in Error, v. FINLEY, Defendant in Error.
• Decision Date: 31 July 1853

18 Mo. 375

BROWN'S ADMINISTRATOR, Plaintiff in Error,
v.
FINLEY, Defendant in Error.

Supreme Court of Missouri.

July Term, 1853.

1. If an administrator could maintain an action for the recovery of personal property held under a conveyance from his intestate, which was void as to creditors, a demand would first be necessary.

2. An administrator cannot impeach a voluntary conveyance of his intestate for fraud as to creditors, although the estate may be insolvent.

Error to Saline Circuit Court.

Napton, for plaintiff in error.

I. No demand was necessary. The rule is, that no demand is necessary where the defendant's possession or detainer is wrongful as against the party, suing or, where there is an assertion of right hostile to the plaintiff's claim. ( Jones v. Henry & Boggs, 3 Litt. 50; Boggess v. Boggess, 6 Munf. 486; 2 Haywood (N. C.) 136; Ib. 186; Selwyn's N. P., tit. “Detinue, Replevin;” 1 Bibb. 189.) If the Circuit Court decided correctly in permitting the administrator, under the circumstances proved, to stand in the shoes of the creditors, it is plain, that quoad the creditors and their representative, the plaintiff, the possession of the defendant was wrongful, if the conveyance was fraudulent, and in that view of the case, no demand was necessary. The decision of the court that the administrator, representing the creditors, was at liberty to attack the supposed gift for fraud, was inconsistent with the decision that a demand was necessary. The doctrine of demand, restricted as it always was under the common law to cases where some sort of trust, confidence or privity existed between plaintiff and defendant, and therefore not applicable to either branch of this case, is one of those absurdities which marred the general excellence of the system and tended to bring it into disrepute. It grew out of a fancied necessity, of adhering so closely to uniformity as to sacrifice good sense and natural equity. A judgment carried with it costs, and therefore a plaintiff was denied an admitted right, because the courts could

[18 Mo. 376]

not give him a judgment, to which he was entitled, without also giving him costs, to which he was not entitled. The manifest dictate of justice, in such cases, is, to give the plaintiff judgment, but compel him to pay the costs. It is submitted, that under the present code of practice, such a point cannot be raised, at the close of a contested case, where neither the plaintiff, in his petition, nor the defendant, in his answer, has said one word about it. (Code of 1849, art. 6.) To require a demand would defeat the very purpose of the suit, which itself implies a suspicion of fraud.

II. The court had no right to tell the jury there was no evidence of a demand, as, though there was no direct evidence, there was enough to satisfy a jury that there had been a demand.

III. The Circuit Court decided correctly, in allowing the administrator to attack the alleged gift for fraud. The contrary rule is based on the idea that the administrator represents the interests of the intestate, and cannot impeach his voluntary conveyance, because the intestate himself could not have done so. The reason ceasing, the rule ought to cease. When the administrator shows, as in this case, that the estate is totally insolvent, then, under our system, he really represents the creditors and not the distributees. Why should a creditor be compelled or even permitted to resort to his suit at law against the person in possession, under a fictitious assumption that he is an executor de son tort, or to a bill in equity, when the whole matter can be fairly investigated in an action like the present, and all the creditors participate pro rata, in the benefits, in accordance with the true spirit and intent of our administration laws? This point, however, does not affect the judgment of non-suit.

Adams and Hayden, for respondent.

I. An administrator, in a suit at law, cannot impeach a gift made by his intestate for fraud as against creditors. ( Hawes v. Leader, Cro. Jac. 270; S. C. Yelv. 196; 1 Brownl. 111; 4 Randolph, 368. 1 Brockenbrough, 501-507; Osborne v....