Comstock v. Keating
| Decision Date | 28 November 1905 |
| Citation | 91 S.W. 416,115 Mo.App. 372 |
| Parties | COMSTOCK, Executrix, Respondent, v. KEATING et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. John A. Blevins Judge.
AFFIRMED.
Judgment affirmed.
T. J Rowe and Henry Rowe for appellants.
The circuit court erred in sustaining plaintiff's motion to strike out parts of defendant's answer. The petition does not state facts sufficient to constitute a cause of action because the liability of one surety to another one for contribution is based entirely and solely upon statutory provisions, and there is no statutory provision for contribution on behalf of the legatees or devisees of a deceased person for a co-security in the event of the co-surety having paid a liability on a bond. R. S. 1899 secs. 889, 890 and 891; R. S. 1899, sec. 4506; R. S. 1899, sec. 4519.
Frank Hagerman and Nagel & Kirby for respondent.
(1) A judgment in favor of plaintiff in a suit against several defendants is not conclusive as between the defendants if they were not in fact adverse parties inter sese, with adverse issues joined, and with the right, opportunity and power to control the introduction of plaintiff's evidence against each other. Bank v. Bartle, 114 Mo. 281, 21 S.W. 816; O'Rourke v. Railway, 142 Mo. 352, 44 S.W. 254; Hoyt v. Green, 33 Mo.App. 210; City v. Plummer, 89 Mo.App. 530; McCrory v. Parks, 18 Ohio St. 1; Cox v. Hill, 3 Ohio 411; Duncan v. Holcomb, 26 Ind. 378; Koelsch v. Mixer, 52 Ohio St. 207. (2) The equity of contribution as between co-sureties, and in favor of the estate of one surety against the distributees of the estate of a deceased co-surety, existed at common law and does not rest solely upon statute as appellant contends. (3) The equity of contribution which existed at common law is not destroyed by the Missouri statutes cited in appelant's brief. R. S. 1899, secs. 4504, 4506, 4518 and 4519; Sutherland on Stat. Const., secs. 139 and 400; State to use v. Darby, 11 Mo.App. 533; 7 Am. and Eng. Ency. Law (2 Ed.), p. 332; Brandt on Suretyship, sec. 284; Story's Eq., sec. 1251; Lanier v. Griffin, 11 S.C. 581; Zollickoffer v. Seth, 44 Md. 359; Stevens v. Tucker, 87 Ind. 109, at 121, 122; Gibson v. Mitchell, 16 Fla. 519. (4) The very statutes cited as negativing the right to contribution against legatees and distributees, do recognize and declare that the right exists against executors and administrators, meaning against the estates in their charge, and in equity the right to follow the estate into the hands of legatees, when the claim for contribution did not accrue until after distribution, is clear, and firmly established. R. S. 1899, sec. 4519; Miller v. Woodward, 8 Mo. 169; Beekman v. Richardson, 150 Mo. 430, 51 S.W. 689; Williams v. Ewing, 31 Ark. 229.
Equitable relief is invoked by the respondent against the appellants Mary Keating and Ella Butler, who are the widow and daughter of William Keating, deceased, and his legatees. Said Keating died testate in March, 1898, having appointed Mary Keating, his widow, and Edward Butler, Jr., husband of his daughter Ella, to be executrix and executor of his will. The estate was duly administered and finally settled December 13, 1901, at which time the executor and executrix were discharged. Each of the appellants received, as legatees, more than $ 2,000 as her distributive share of the estate. The respondent is the executrix of the will of Freeman J. Comstock, who died December 11, 1900. Comstock and Keating were sureties on the official bond of Hugh M. Thompson, a notary public. The condition of the bond was that said Thompson should faithfully perform the duties of his office. On November 2, 1895, Thompson certified the acknowledgment of a deed of trust on a lot in the city of St. Louis, the title to which was vested in Lee Martin, a colored man. The deed of trust was signed in the name of Lee Martin and purported to have been executed by him to John B. Henderson, as trustee, to secure a principal note for $ 800 and interest notes, all payable to Henry Zimmerman. The notarial certificate of Thompson recited that Lee Martin, the apparent grantor in the deed of trust, was known to Thompson to be the person whose name was subscribed to the instrument, and that he had personally appeared before Thompson and acknowledged the instrument to be his free act and deed for the purpose mentioned in it. Relying on this certificate Anna Mackey purchased the notes, supposing them to be the notes of Lee Martin and well secured by the lien of the deed of trust on the lot of ground; which, as said, belonged to Lee Martin. The notes and deed of trust were forgeries and Martin had never acknowledged the deed. A white man personated him in the acknowledgment of the instrument; Thompson the notary, believing at the time that the man was in truth Lee Martin, but neglecting to do what he ought to have done, to make sure of the fact. The notes proved worthless and the purchaser (Anna Mackey) subsequently, to-wit, July 13, 1898, instituted an action in the name of the State of Missouri to her use on Thompson's official bond against Thompson himself, his surety Freeman J. Comstock, and Edward Butler, Jr., and Mary Keating as executor and executrix of the will of William Keating, the other surety, who had died in March, 1898. That action was brought to recover the damages sustained by respondent in consequence of Thompson negligently certifying to an acknowledgment by Lee Martin. Thompson filed an answer to Anna Mackey's petition, denying all its allegations and averring that the person who signed and acknowledged the deed of trust was named Lee Martin and that he (Thompson) was satisfied when he took the acknowledgment that said person was Lee Martin. The surety Comstock filed an answer containing a general denial and a special plea in bar that the name of the person who acknowledged the deed of trust was Lee Martin. Edward Butler, Jr., and Mary Keating, as the personal representatives of William Keating, filed a general denial. A replication consisting of a general denial, was filed by the plaintiff to the answer of Comstock. The issues in the case were made up by those pleadings. The trial resulted in a verdict in favor of the defendants Mary Keating and Edward Butler, Jr., as executor and executrix of William Keating, and in favor of the plaintiff against Thompson and his surety Comstock, in the sum of $ 966.77. Anna Mackey remitted $ 41.84 from the amount of the verdict; whereupon judgment was entered exonerating the executor and executrix of Keating from liability and adjudging that the plaintiff recover of the other defendants, Thompson and Comstock, the sum of $ 5,000, the penalty of Thompson's bond, to be satisfied on payment of $ 924.23, the damages sustained by Anna Mackey and the costs. Before the cause was finally disposed of it reached this court on an appeal from a prior judgment, which was reversed and the cause remanded. [State ex rel. Mackey v. Thompson, 81 Mo.App. 549.] At the second trial a judgment was entered disposing of the cause in the way we have stated, from which the defendants Comstock and Thompson again appealed. Comstock died while that appeal was pending and after his death it was dismissed. The judgment was then proved in the probate court against the estate of Comstock and paid by his executrix, the respondent, who disbursed in so doing the sum of $ 1,159.65. The present suit was instituted for the purpose of recovering contribution from the appellants as legatees of William Keating, deceased, to the amount of one-half the sum respondent paid, on the ground that Keating was a co-security with Comstock on Thompson's bond and as much liable for his (Thompson's) default as Comstock. Thompson, the principal, is insolvent and an action against him would be fruitless. The judgment in favor of Anna Mackey was satisfied by the respondent January 3, 1902; that is, subsequent to the final settlement of the Keating estate, which, as said above, occurred December 13, 1901. The administration of said estate having been closed prior to the payment of the Mackey judgment, the position of the respondent is that the demand for contribution could not be presented for allowance in the probate court, nor could an action for contribution be brought against the executor and executrix, as they had been discharged; wherefore respondent affirms that she is without legal remedy and entitled to relief in equity. The appellants filed an answer consisting of a general denial and a plea in bar. The latter defense rests on the theory that the judgment in their favor in the case of State ex rel. Mackey v. Thompson et al., was an adjudication that the appellants were not liable as executor and executrix of Keating's estate for Thompson's official misfeasance in certifying to an acknowledgment by Lee Martin. The answer in the present case set up the proceedings in the Mackey case, reciting the petition and the answers of the several defendants therein, and averring that the circuit court of the city of St. Louis, having jurisdiction of said Mackey case, after hearing the evidence and the pleadings, entered judgment therein on the merits in favor of the appellants as the representatives of William Keating, and against said Anna Mackey, adjudging that she (Anna Mackey) take nothing against these appellants, but that they go hence without day and recover of said Anna Mackey their costs. Wherefore, it is averred that all the matters and things alleged in the petition in the present case were fully and finally adjudicated in said case, and the judgment therein is pleaded in bar of a recovery in the present action. The respondent filed a motion to strike out appellant's plea of former...
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