Ferguson v. Carson

• Decision Date: 28 November 1882
• Citation: 13 Mo.App. 29
• Parties: W. F. FERGUSON, Appellant, v. J. O. CARSON, ADMINISTRATOR, Respondent.
• Court: Missouri Court of Appeals

13 Mo.App. 29

W. F. FERGUSON, Appellant,
v.
J. O. CARSON, ADMINISTRATOR, Respondent.

St. Louis Court of Appeals, Missouri.

Nov. 28, 1882.

[13 Mo.App. 30]

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

Reversed and remanded.

E. T. FARISH, for the appellant: “A creditor having recovered judgment against his debtor and a surety separately, the surety satisfied the judgment against himself, and took an assignment of the judgment against his principal. Held, that the judgment so assigned might be enforced by the surety.”-- Clason v. Morris, 10 Johns. 524. “When a surety pays a judgment against himself and the principal, he has a right to have it assigned to him, and to use it as a subsisting judgment against the principal.”-- Goodyear v. Watson, 14 Barb. 481; McDougald v. Dougherty, 14 Ga. 674; Alexander v. Lewis, 1 Metc. (Ky.) 407; Creager v. Brengle, 5 Har. J. 234; Alden v. Clark, 11 How. Pr. 209; Harbeck v. Vanderbilt, 20 N. Y. 398. The proceeds of the sale of the real estate were not properly chargeable to the administrator.-- In re Camp, 6 Mo. App. 563; s. c. 74 Mo. 192. An appeal will lie from an order of the probate court, refusing to grant an order for the sale of realty for the purpose of paying claims against the estate.-- McCrary v. Menteer, 58 Mo. 446; Duff v. Doyle, Admr., 56 Mo. 301; McVey, Curator, v. McVey, 51 Mo. 406; Wilson v. Brown, Admr., 21 Mo. 410.

HENRY T. KENT, for the respondent: The claim of Ferguson appears to have originated since the death of Carson, and therefore is not such a claim as can be allowed, or classified against the estate. The action of the probate court in allowing the same was coram non judice, and open to collateral attack.-- Presbyterian Church v. McElhinney, 61 Mo. 54; Same v. Griffin, 67 Mo. 654; Garnett v. Carson, 11 Mo. App. 290. If it is contended that the claim or

[13 Mo.App. 31]

demand arose out of the payment by Ferguson of the judgment of Ober, against Carson's estate, Ferguson being the surety on the bond, we answer that the payment of a debt against the estate by a surety discharges the debt against said estate.-- McDaniel v. Lee, 37 Mo. 204; Hall v. Sherwood, 59 Mo. 172; Wernecke v. Kenyon, 66 Mo. 283. The only remedy of a surety who pays a debt against the estate is to have himself subrogated to the rights of the creditor in a court of equity. There has been no subrogation in the case.-- Wernecke v. Wood, 58 Mo. 352; Wernecke v. Kenyon, 66 Mo. 275. The probate court is a court exclusively of statutory powers, and has no equitable jurisdiction.-- Butler v. Lawson, 72 Mo. 227.

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

This was an application by a creditor of the estate of J. B. Carson, deceased, for an order of sale of realty. The probate court denied the application, and ordered that the petition be dismissed. The petitioner appealed to the circuit court. On hearing anew in that court, the prayer of the petitioner was refused.

It is contended that the action of the probate court shows...