Foster & Foster v. Wallace

• Decision Date: 31 October 1830
• Citation: Foster & Foster v. Wallace, 2 Mo. 231 (Mo. 1830)
• Parties: FOSTER & FOSTER v. WALLACE.
• Court: Missouri Supreme Court

2 Mo. 231

FOSTER & FOSTER

v.WALLACE.

Supreme Court of Missouri.

October Term, 1830.

APPEAL FROM HOWARD CIRCUIT COURT.

PETTIBONE, J.

Wallace sued the Fosters, appellants, as executors of Charles Simmons, in an action of debt on a bond made by Simmons on the 18th day of February, 1824, for a sum of money to be paid on the 1st day of May, 1826.The defendants pleaded 1st, non est jactum; 2d, ne unques executors; and 3d, that Simmons died intestate, and that before the commencement of this suit, Robert Wash was, and ever since has been, and still is, Simmons' administrator.Upon the first and second pleas the plaintiff took issue, and to the third plea replied, that the defendants, after the death of Simmons, and before the grant of administration to Wash took and converted to their own use certain personal property, being part of the estate of Simmons at the time of his death, and that they thereby became executors to their own wrong.Upon this replication issue was taken, and on these issues the cause was tried by a jury.Verdict on all the issues, was found for the plaintiff, and judgment thereon rendered.

On the trial, it appears that Simmons was domiciled and died intestate in Hardiman county, in the State of Tennessee, in August, 1824, and that administration of his effects was granted in that State on the third Monday in February, 1825, and afterwards on the 11th day of April, 1827, was granted to Robert Wash.The plaintiff rested his whole right of recovery upon the fact that the defendant had intermeddled with some slaves, the property of Simmons, and thereby had become executors of their own wrong.The slaves charged to be thus intermeddled with, were named John, Tom, Joe, Anthony, Mary, and Sal and her three children, viz: March, Ann and Martha.

To these slaves the defendant set up title in themselves, which title the plaintiff insisted was fraudulent against Simmons' creditors.The plaintiff gave evidence that Simmons formerly resided in this State, and had said slaves in his possession part of the time that he resided here; that in November, 1823, he removed to Hardin county, in the State of Tennessee, and at the time of his death had all the slaves in his possession, except Joe; that after his death, and before any grant of letters of administration of his estate, the defendants went from this State to Simmons' late residence in Tennessee, and took the slaves into their possession, and brought them to this State, and claimed and used them as his own.The defendants gave evidence that the slaves Mary and Sal and the issue of Sal, were and always had been the property of the defendant George, and that Simmons held them under a loan from the said George, who was the father-in-law of Simmons.It was also in evidence on the part of the defendants, that in the summer of the year 1823, the defendant, Josiah, purchased from Simmons two of the said slaves, viz: Tom and John, and that the two defendants purchased from him the slaves Joe and Anthony.Bills of sales for all were produced, except for Joe, and for him none had been given.The plaintiff gave evidence that when Simmons removed to Tennessee he took the said slaves with him; that at the time of the sale of said slaves he was greatly indebted; that Simmons continued in possession of the property after he had sold it; that Simmons had been five years in possession of the slaves Mary and Sal, and the issue of Sal, and that no writing declaring the loan of them to Simmons had been recorded.The defendants gave evidence controverting these facts, contending that the sales were in good faith, and for full and valuable consideration, and that the possession was not retained by Simmons, that he(S.) had at the time of the sale other property sufficient to satisfy all his debts.

On the trial, John Simmons, brother of the deceased, was offered as a witness by the plaintiff, who was objected to by the defendants, because the deceased having left no issue, the witness was interested in having the debts paid out of property which could not be reached by representatives of said deceased.For the purpose of showing the consideration given for the slaves Joe and Anthony, the defendants proved that Gaw's executors had recovered judgment against Simmons, and the defendant, Josiah, for $131, and that Josiahhad satisfied this judgment; and then offered to prove that said defendant had executed the writing merely as security of Simmons.This evidence the court refused to allow unless the non-production of the subscribing witness to the writing was accounted for, and it was rejected.To prove that Simmons was indebted before the time of the several conveyances to the defendants, the plaintiff introduced J. Kingsbury to prove that before the date of these conveyances he held Simmons' bond for $200 or $300, and that on the 18th day February, 1824, Simmons paid part of the debt, took up his bond, and together with another person as security, executed to Kingsbury two other bonds for $50 each, the residue of the original debt, and that his security had, Since Simmons' death, paid these two bonds.The plaintiff not accounting for the non-production of the bonds, the defendants objected to the testimony, but the objection was overruled and the testimony admitted.

The plaintiff also, for the same purpose, proved and read to the jury an obligation made by Simmons on the 16th day of February, 1824, payable to Peyton Nowlin, for $441 60, and produced said Nowlin as a witness to prove that W. F. Edwards, prior to the year 1823, held an obligation on Simmons, payable to himself, for a considerable sum of money; that after Edwards' death, this obligation came to the hands of Nowlin as administrator, and that in February, 1824, Nowlin delivered it up to Simmons, and received in lieu of it the aforesaid bond.This testimony was objected to for the same reason as that last before mentioned, but the objection was overruled.On the trial, the plaintiff, to show that the defendants held Simmons' bonds for the payment of large sums of money at the time of his death, introduced John Simmons, who testified that in November, 1824, he was in conversation with George S. Foster, at the late residence of Charles Simmons, in Tennessee, and that said Foster then read to the witness three notes from Charles Simmons, payable to the defendants, for $800 or $1000 each.The plaintiff then produced a copy of the record of a judgment of the Hardiman Court of Common Pleas and Quarter Sessions, in favor of George S. Foster, against the administrators of Charles Simmons, on a bond made by Simmons to Foster, dated 9th November, 1823, for $1000, and at the same time proved that the defendants had placed a transcript of the record of the judgment in the hands of an attorney, and authorized him to procure an allowance of the said claim in Howard County Court against R.Wash as administrator of Simmons, and that said attorney had made out a copy of said transcript and delivered it to Wash as notice of said Foster's claim against Simmons' estate, and that the paper now produced was the copy which he delivered to Wash.The reading of the copy was objected to by the defendants, and the objection overruled by the court.

The plaintiff then produced another writing, purporting to be a copy of the transcript of a record of a judgment of the same court, in favor of Josiah Foster, against the administrators of the same, and for the same purpose as the former: the reading of which was in like manner objected to by the defendants, and the objection overruled.The plaintiff then produced the depositions of Robert Thrasher, H. C. Warren and William Ramsay.The deposition of Thrasher went to show that Simmons exercised the rights of ownership ove the property contended for.Ramsay's was to the same purpose, as was the greater part of Warren's.Warren stated, that in conversation with Simmons, he had told him that it was understood that George S. Foster of Missouri held a lien on his property, and that Simmons replied it was a damned lie, that his property was his own, and no man had a lien on it.During the progress of the trial, the defendants, having previously given in evidence that Simmons' intention of removing to Tennessee was a matter of notoriety in the county long before his departure, the plaintiff produced a witness to prove that he met Simmons on his way to Tennessee, and that S. told him he was only going to Potosi Mines, and meant to return.This testimony was objected to, but admitted by the court.The court instructed the jury:

First.If they find that the defendants intermeddled with the property of the deceased before the appointment of an administrator, then they should find for the plaintiff the sum due him from Simmons, although the property might not have been of the value of the debt.

Second.If they find that the defendants claimed the property by a conveyance under an absolute bill of sale from Simmons to them, and that the possession of the property did not accompany and follow said conveyance; and that the plaintiff was a creditor of Simmons at the time of such conveyance, and still is such creditor, that then such conveyance is void as against the plaintiff.

The defendants then moved the court to instruct the jury:

First.That if the defendants' bill of sale were intended between the parties thereto only as a mortgage or indemnity to the defendants...