Ferguson v. Carson

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

13 Mo.App. 29

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

Court of Appeals of Missouri, St. Louis.

November 28, 1882

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 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.

OPINION

BAKEWELL J.

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 no final order from which an appeal would lie. The refusal of the probate court to make the preliminary order applied for, would seem to be a final disposition of the matter, so far as that court was concerned. There could be no order of sale without an order of publication. The statute gives an appeal " in all cases where there shall be a final decision of any matter arising under the provision of the chapter" on administration. It also gives an appeal " on all orders for the sale of real estate." It is not to be supposed that the legislature gave an appeal from an order of sale, and withheld it from an order necessarily fatal to an application for sale. The right of appeal is covered by the sweeping language of the fifteenth subdivision of section 292 of the Revised Statutes, set out above.

It appears that when John B. Carson died, an action was pending against him, which, after his death, was revived in the name of James O. Carson, his administrator cum test. ann. An appeal was taken by the administrator to the supreme court of the United States, William F. Ferguson, plaintiff here, being surety upon the appeal-bond. There was a final judgment for plaintiffs in the supreme court, which they assigned to John M. Glover, who had the same allowed and classified in the probate court. On April 19, 1879, in consideration of $6,649.42, Glover assigned this judgment and allowed demand to Jamison. Jamison testifies that, in making the purchase, he acted for Ferguson, whose money was used in the purchase, and for whom Jamison claims to hold the judgment merely as trustee. The object, he says, was to keep the judgment alive. Ferguson was the beneficial owner of the judgment; and, before the application now in question, Ferguson had made application to the probate court for a sale of realty, which was refused by the court on the ground that these facts showed a payment of the judgment. Afterwards, Ferguson presented for allowance to the probate court the following demand:--

" John B. Carson's estate, Dr. to William F. Ferguson. April 19, 1879. To cash paid judgment rendered by the St. Louis Circuit Court, March 30, 1874, against said estate, and in favor of Robert P. Ober et al., and appealed by James O. Carson, administrator of John B. Carson, to the supreme court of Missouri, and from said court he appealed to the supreme court of the United States, and classified March 2, 1879, in the St. Louis Probate Court. The said William F. Ferguson was security on said appeal-bond to the supreme court of the United States.

$6,649 42

Interest on same 39 74

$6,749 16"

On this demand $6,749.16 was allowed on July 15, 1879, and it was placed in the sixth class. Ferguson then notified Carson in writing that, this demand not having been paid, and there not being personalty to pay it, he should apply at the next term of court for an order of sale of realty. Accordingly, he presented at the next term of the probate court, an application for an order of sale. In this application he speaks of himself simply as a creditor of the estate, and makes no express mention of this demand; but he refers to the notice to Carson, and annexes it to his application.

Defendants objected to the introduction of these allowances. To the first, they objected that it was not the allowance upon which the application was based; to the second, they objected that it was for a demand that arose after John B. Carson's death. The report of the administrator, with account of his administration, list of debts unpaid, and of real estate, were all in evidence and will be noticed more fully in the course of the opinion.

Upon this state of facts, we are of opinion that there is nothing to show any payment of the allowance in favor of Jamison, of which Ferguson appears to be the beneficial owner,...