Ferguson v. Carson

• Decision Date: 01 February 1881
• Citation: 9 Mo.App. 497
• Parties: WILLIAM F. FERGUSON, Appellant, v. JAMES O. CARSON ET AL., Respondents.
• Court: Missouri Court of Appeals

9 Mo.App. 497

WILLIAM F. FERGUSON, Appellant,

v.JAMES O. CARSON ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Feb. 1, 1881.

1. Where a final settlement has been set aside, the Probate Court becomes repossessed of the administration of the estate, and is the proper tribunal in which to enforce a demand allowed against the estate.

2. Where the Probate Court is possessed of the administration of an estate, the Circuit Court has no jurisdiction to decree that a demand allowed against the estate shall be a lien on the realty of the estate.

3. That the heirs have, before final settlement, sold their interest in the realty of the deceased, will not oust the Probate Court of jurisdiction to enforce against such realty a demand allowed against the estate.

4. A bill in equity to charge the realty of an estate with the payment of demands allowed against the estate, declared to be without equity.

APPEAL from the St. Louis Circuit Court, WICKHAM, J.

Affirmed.

E. T. FARISH, for the appellant: The debts of a debtor become a lien upon his real estate at his death, and his devisees take subject to the payment of such debts.--Rawle on Cov. 546; Watkins v. Holman, 16 Pet. 62; Hinton v. Whitehurst, 71 N. C. 66; Metcalf v. Smith, 40 Mo. 572. And the land is liable in the hands of a bona fide purchaser from the heir or devisee.-- Wyman v. Brigden, 4 Mass. 150; Gore v. Brazier, 3 Mass. 523; Griswold v. Bigelow, 6 Conn. 268; Graff v. Smith, 1 Dall. 481; Richard v. Williams, 7 Wheat. 59; Morris v. Smith, 1 Yeates, 244; Vansycle v. Richardson, 13 Ill. 173. A case of controlling authority is Heitkamp v. Biedenstein, 3 Mo. App. 450.H. T. KENT, for the respondents.

KEHR & TITTMANN, with whom are MYERS & ARNSTEIN and H. A. HAEUSSLER, for the respondents: The devisees took and held the lands of John B. Carson discharged of all liability arising out of the obligations of the devisor, and so conveyed the same.-- Sauer v. Griffin, 67 Mo. 654; Whittlesey v. Brohammer, 31 Mo. 98. If the assets of the estate of John B. Carson are exhausted, and the plaintiff's debt remains unpaid, it is because the executor misapplied the assets, and in that case the remedy primarily is on his bond.-- Merritt v. Merritt, 62 Mo. 150. Our statute of administration has entirely superseded the machinery of the common law, and the whole doctrine of equitable assets-- marshalling of assets in equity--is without application here. Hence the Circuit Court has no jurisdiction.-- Titterington v. Hooker, 58 Mo. 593; Pearce v. Calhoun, 59 Mo. 271.

LEONARD WILCOX and CARR & REYNOLDS, for the repondents: The Probate Court alone had jurisdiction to grant the relief sought.-- Wernecke v. Kenyon, 66 Mo. 283-285; Titterington v. Hooker, 58 Mo. 596-598; Pearce v. Calhoun, 59 Mo. 274; Bank v. White, 23 Mo. 342; Public Works v. College, 17 Wall. 530. There was no equity in the bill.-- Bank v. White, 23 Mo. 342; Metcalf v. Smith's Heirs, 40 Mo. 576; Watkins v. Holman, 16 Pet. 63.

BAKEWELL, J., delivered the opinion of the court.

The petition alleges that Ober & Co. began suit in the St. Louis Circuit Court in 1863 against John B. Carson, who died pending the suit. The action was revived against his executor, James O. Carson, one of defendants herein, and such proceedings were had that in March, 1874, judgment was obtained by Ober & Co. against Carson's estate, upon which a balance of $5,114.92 remains unpaid. In 1869, pending this suit, and in disregard of it, the executor made final settlement of the Carson estate. In 1878, at the suit of the assignee of the Ober judgment, this final settlement was set aside by the Circuit Court, and the Ober judgment then was exhibited for allowance in the Probate Court by the assignee, and allowed and placed in the sixth class. In April, 1879, by virtue of transactions set out, plaintiff became subrogated to all the rights of the first assignee of this judgment, and entitled to recover from the Carson estate the sum expended by him in the purchase of this judgment. Accordingly, on July 15, 1879, on notice to the executor, plaintiff presented his claim for the money so paid by him, to the Probate Court for allowance against the estate of John B. Carson. The sum of $6,749 was allowed on said demand in favor of plaintiff, and the demand placed in the sixth class.

Appellant alleges that neither the assigned judgment nor the allowance in favor of plaintiff has been paid; that they constitute a lien upon the realty of which Carson died siezed. Carson left a will, by which, after certain specific legacies, he devised the balance of his estate to his brother, James O. Carson aforesaid, and to his sister. The personal assets of the estate have been long since exhausted, and all demands against the estate paid, except that of plaintiff.

The petition sets forth all the realty of which John B. Carson died seized, which consists of many parcels, and alleges that his two devisees have conveyed the same in severalty to defendants, and those under whom they claim; that all this real estate is bound for the payment of plaintiff's allowed demand; that the several parcels were conveyed and taken subject to this claim, and that these pieces of land are the sole assets of...