Clark v. Drake

• Citation: 63 Mo. 354
• Parties: JNO. B. CLARK, et al., Appellants, v. MILTON B. DRAKE, et al., Respondents.
• Decision Date: 31 October 1876
• Court: United States State Supreme Court of Missouri

63 Mo. 354

JNO. B. CLARK, et al., Appellants,

v.MILTON B. DRAKE, et al., Respondents.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Polk County Circuit Court.

Lay & Belch, for Appellants, cited: 1 Sto. Eq. Jur. § 323; 2 Id., §§ 1211, 1261, 1265; 2 Washb. Real Prop. marg. pp. 209-13; Boardman vs. Florey, 37 Mo. 559; Beal vs. Harmon, 38 Mo. 435; Woodlee vs. Burch, 43 Mo. 231; Thornton vs. Irwin, Id. 153; Grumly vs. Webb, 44 Mo. 444; Dohrman vs. Copelin, 47 Mo. 76; Chesley vs. Chesley, 49 Mo. 540; Hunter vs. Hunter, 50 Mo. 445; Mechaud vs. Girod, 4 How. [U. S.] 503; Wagn. Stat. p. 84, §§ 1, 2; p. 94, § 6; p. 98, § 32.

Phillips & Vest, for Respondents, cited: Barker vs. Barker, 14 Wis. 131-49; Wood vs. Hitchcock, 20 Wend. 48, 49; Bellows vs. Smith, 9 N. H. 285-87; Loring vs. Cook, 3 Pick. 48; 2 Pars. Cont. 155; 1 Sto. Eq. § 409; 35 Mo. 71; Wood vs. Jackson, 8 Wend. 36-7; Hildreth vs. Sands, 2 Johns. Ch. 36, 49, 50; Pepper vs. Carter, 11 Mo. 540; Rhodes vs. Outcalt, 48 Mo. 372-3.

NORTON, Judge, delivered the opinion of the court.

This suit was instituted by plaintiffs for the purpose of divesting defendants of title to certain lands in Benton county, and having it vested in plaintiffs. The only question before us is whether the court below erred in sustaining the demurrer to the petition and entering judgment thereon.

Stripping the petition of all surplusage, and disregarding the rambling manner in which the allegations are made, it substantially states the following facts: that James A. Clark in the year 1860, was the owner of about four hundred acres of land in Benton county; that on the 28th day of April, 1860, he executed to one Jesse Drake a deed of mortgage, conveying to him said lands to secure the payment of $2,300; that at the time of the execution of the mortgage only three hundred dollars of the above sum was received by Clark, and that it was the agreement that the remaining $2,000 was to be advanced by Drake to Clark as the latter might require; that Clark the next day after the mortgage was made, started for the State of Oregon to be absent two or three years, and that no part of the remaining $2,000, had at any time ever been advanced to Clark by Drake; that Clark died in the State of Oregon in 1864, leaving plaintiffs as his only heirs, who were all minors at the time of his death; that one E. S. Drake, the brother of Jesse Drake the mortgagee, administered upon the estate of said Clark in Benton county in the year 1864; that Jesse Drake after the maturity of the note, transferred the same to his brother-in-law, Charles Stewart, for the consideration of $500, and that Stewart had full knowledge that only $300 and interest was due on the same; that E. S. Drake, administrator of said Clark, with knowledge of the fact that only $300 and interest was due on said note and mortgage, permitted Stewart, the assignee, on the 11th day of March, 1865, to take a judgment thereon in the circuit court of Benton county against him as administrator for the sum of $3,421; that execution issued on said judgment, and the lands described in the petition were sold by the sheriff of said county, and that Drake while acting as administrator became the purchaser of the same at the price of $520, and took a sheriff's deed to himself; that there was also sold under said judgment and execution a lot in the town of Warsaw for the sum of $140; that said E. S. Drake died before the institution of the suit, and that defendants are his only heirs; that said Clark at the time of his death owned other lands besides those mentioned in the mortgage, and that the debt mentioned in the mortgage was the only debt he owed; that plaintiffs had tendered the sum of $540 to defendants less $400 for waste committed by defendants. The objections to the petition, specified in the demurrer, are, that it alleges the mortgage to be fraudulent without stating the facts which make it so; that plaintiffs are estopped from asserting that the mortgage or any part of it is fraudulent; that Stewart is not made a party to the suit, and that it does not aver that the administrator bought the land with assets belonging to the estate.

The statement of the petition “that the judgment was obtained on a fraudulent mortgage for the want of most of the consideration money mentioned in the same,” was intended by the pleader, from the connection in which it appears, to apply to the fraudulent use made of it by Stewart the assignee, in demanding a judgment, and by Drake the administrator in permitting a judgment to be rendered on it for the full sum of $2,300 and interest, when both of them knew that such judgment should only have been for $300 and interest. In this view of it, not only could Clark, the ancestor of plaintiffs, have resisted such a proceeding, but the administrator who stood in his shoes, having knowledge of all the facts, was derelict in his duty in not resisting it. Nor do we then see any necessity for making Stewart a party, as the suit is not brought for the purpose of vacating the judgment, but to take the title of land from the defendants, acquired by them under circumstances which authorize the interposition and interference of a court of equity.

As we view the facts of the case the petition is not defective in failing to charge that the administrator paid for the land out of the assets belonging to the estate.

The facts admitted by the demurrer show that the administrator, whose duty it was to protect not only the interests of the creditors but of all parties interested in the estate, consented or permitted in fraud of the rights of creditors and heirs a judgment to be rendered against him as administrator for the sum of $3,421, when he knew that the true amount of...