Byrd v. Governor of Missouri

• Decision Date: 30 April 1829
• Citation: 2 Mo. 102
• Parties: BYRD AND OTHERS v. GOVERNOR OF MISSOURI, TO USE, &C.
• Court: Missouri Supreme Court

2 Mo. 102

BYRD AND OTHERS

v.GOVERNOR OF MISSOURI, TO USE, &C.

Supreme Court of Missouri.

April Term, 1829.

ERROR FROM THE CAPE GIRARDEAU CIRCUIT COURT

WASH, J.

This was an action of debt commenced in the Circuit Court, against Byrd, as the security in an administration bond. On the trial, an agreement between the defendant and the creditors of the deceased was read in evidence, by which it appears as follows: “that Col. Byrd proposed to go into the Circuit Court and enter his appearance without writ, to such suits as the creditors of Chamberlain may institute against him, for waste on the bond. All creditors may institute suit, and he will agree with the creditors to try one to establish the amount of the waste; and that judgment shall be entered up against him for the waste in favor of each creditor in proportion to the whole amount wasted, and the parties are to permit Col. Byrd to make use of any equitable defense he may have,” &c.

Several breaches were assigned, and on the plea of nil debet, the waste was established to the amount of $1,503 19 1/4 cents. The defendant then proved, that “previous to the death of the intestate Chamberlain, he had dug and walled a cellar on a lot in the town of Jackson, that after his death the said Eliza (administratrix), before the said estate was declared to be insolvent, went on to build and actually did build, a brick house on said lot, on the foundation made by the said Jason (the intestate), in his life-time, as aforesaid;” and it was proven that the building the said house could not have cost the said Eliza (administratrix), less than twelve or thirteen hundred dollars. The defendant further proved on the trial, that the administration of said estate was taken from said administratrix, and given to said defendant. That in the year 1822, on his (defendant's) application to the Circuit Court of the county of Cape Girardeau, the Court ordered him, the said defendant, as administrator de bonis non, to sell all the real estate of Jason Chamberlain (the intestate); that in pursuance of said order, he did sell at public sale, the said real estate; that amongst the rest, he sold the said lot and brick house, in the town of Jackson, for seven hundred and seventy-five dollars, all of which, he paid by order of the County Court, to the creditors of said Chamberlain. The defendant further proved on the trial, that at the time of said sale of said lot by said administrator, the lot on which said brick house was built, with...