Evans v. Halleck

• Decision Date: 31 October 1884
• Parties: EVANS, Administrator, Appellant, v. HALLECK et al.
• Court: Missouri Supreme Court

83 Mo. 376

EVANS, Administrator, Appellant,

v.HALLECK et al.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Mercer Circuit Court.--HON. G. D. BURGESS, Judge.

AFFIRMED.

Hyde & Orton for appellant.

(1) The plaintiff is entitled to be subrogated to the rights of the holder of the mortgage note. He paid the money as administrator under mistake of fact and is entitled to the relief asked. 1 Story Eq. Jur. (8th Ed.) sec. 90. (2) It was the duty of the administrator, if the assets were sufficient, to pay off the mortgage debt. Creed v. Myer, 64 Ill. 495. (3) In case of payment to a creditor of more than the share of such creditor, the administrator can recover it back in his administrative capacity. 4 Gray 519; 17 Mass. 317. (4) The payment by the administrator was not officious. It was not the act of a stranger for the purpose of making the defendants his debtors. Williams v. Williams, 2 Dev. Eq. (N. C.) 69; Trumbo v. Torreng, 3 T. B. Monroe 284; S. C. 16 Amer. Dec. 103.

George Hall for respondents.

The amended petition did not state a cause of action. Jones v. Bragg, 33 Mo. 337; Wolf v. Walters, 56 Mo. 292; Turner v. Faucett, 6 Ired. (N. C.) 549; Skinner v. Budd, 14 N. J. Eq. 234; Sweeney v. Mallory, 62 Mo. 485; Beckmann v. Meyers, 75 Mo. 333. It is only in cases where the person that pays the debt of another stands in the relation of a surety, or is compelled to pay to protect his own interest; or in virtue of legal process; or at the debtor's instance that equity will subrogate him to the rights of the creditors. Richmond v. Morrison, 15 Ind. 134; Wilson v. Brown, 13 N. J. Eq. 277; Godsden v. Brown, Spears S. C. Chancery Rep. 37; Oliver v. Bragg, 15 La. Ann. 402; Succession of Vergin, 18 La. Ann. 42; Sandfond v. McLon, 3 Paige (N. Y.) 117; Hough v. Insurance Co., 57 Ill. 319; Young v. Morgan, 7 Reporter 334; Kelly v. Kelly, 19 Cen. Law Journal, p. 38, § 35. But suppose plaintiff could be subjected to the rights of Thomas, the creditor, he must take security as he finds it at the time he made his application. Logan v. Mitchell, 67 Mo. 524.

NORTON, J.

This case is before us on plaintiff's appeal from the action of the circuit court in sustaining a demurrer to his petition and entering judgment thereon. The only question, therefore, presented is the sufficiency of the petition which, in substance, sets forth the following as the cause of action: That one Elisha W. Halleck died intestate in July, 1871, and at the time of his death was the owner in fee of certain lands described in the petition; that said Halleck in his lifetime being indebted to one Thomas for the purpose of securing said indebtedness in July, 1869, executed a deed of trust in which his wife joined conveying said land to a trustee and empowering him to sell the same in the event of the non-payment of the debt secured by the deed; that after the death of said Halleck one F. W. Trowbridge administered on his estate and continued to act as administrator until April, 1873, when he resigned after making settlement, whereupon plaintiff, Evans, was appointed administrator; that on the 7th of February, 1874, the trustee in the deed of trust was about to sell the land under the power for the payment of a balance of about $400 due Thomas on the debt secured by the deed; that said debt or claim of Thomas had never been presented for allowance and classification; that plaintiff for the purpose of preventing a sale of the land paid off the debt in various payments amounting in all to $412; and that such payments were made by him on the supposition that the assets of the estate in his hands were sufficient to pay said claim and all others which had been allowed against the estate; that plaintiff was mistaken in this supposition and there still remained unpaid claims allowed in the fifth class amounting to $800 with ten per cent. interest from April, 1873, and $341 of class six and that the assets of the estate remaining in the plaintiff's hands applicable to said claims amounted to the sum of...