Gimbel v. Pignero

• Citation: 62 Mo. 240
• Parties: LENA GIMBEL, Respondent, v. ELIZA PIGNERO, et al., Appellants.
• Decision Date: 31 January 1876
• Court: United States State Supreme Court of Missouri

62 Mo. 240

LENA GIMBEL, Respondent,

v.ELIZA PIGNERO, et al., Appellants.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

Fisher & Rowell, with Pogue & Pignero, for Appellants.

J. D. Brooks, for Respondent.

WAGNER, Judge, delivered the opinion of the court.

This was a suit in the nature of a bill in equity, brought for the purpose of setting aside the entry of satisfaction on the margin of a deed of trust for $2,000 and interest, made by P. A. Pignero in his lifetime, and Eliza, his wife, to Carl Gimbel, now deceased, as trustee for Lena Gimbel, the plaintiff. The plaintiff claims that the entry of satisfaction made by Sternberg, one of the defendants, as administrator of Carl Gimbel, deceased, was fraudulent; that the administrator had no right to collect the money; that he, by falsely and fraudulently representing to Pignero that the probate court had ordered him to collect the money, induced Pignero to pay the same, and the prayer was, that the entry of satisfaction might be declared fraudulent, and that it should be cancelled, and that the sheriff should be ordered to carry out the provisions of the trust.

The defendant Sternberg admitted that the money was paid to him by Pignero, but averred that the deed of trust and notes belonged to Carl Gimbel; that the trust deed was made in the name of the plaintiff under a mutual arrangement; that, as administrator of Carl Gimbel, deceased, he collected the money; that as such administrator he had entered satisfaction on the record, and that the money, for which the deed of trust was made, belonged to the estate of Gimbel, deceased, and not the plaintiff.

In the court below the case was submitted to a referee, to hear the testimony and render a decision thereon. He made his report of the evidence, and then gave his conclusion in favor of the plaintiff. Upon exceptions, this report was set aside, on the ground that he had improperly admitted the testimony of the plaintiff, the court being of the opinion that she was an incompetent witness.

By the consent of the parties the case was then submitted to the court, upon the evidence reported by the referee, with the testimony of the plaintiff stricken out, and the court then confirmed the decision of the referee, and gave judgment as prayed for in the petition.

The facts as they appear are, that Carl Gimbel, deceased, and trustee in the deed of trust, was the father of the plaintiff, Lena, and he retained the deed and notes in his possession till some time prior to his death, when they were given to his wife, Lena's mother. Mrs. Gimbel testifies that, when Carl gave her the note and deed, he told her to keep them till Lena called for them. Carl Gimbel, at the time of his death, resided in Illinois, and Sternberg took out letters of administration on his estate in this State. Sternberg never had possession of the note claimed by Lena, nor of the deed of trust. But they were both in her possession, and, whilst they were so in her possession, he induced Pignero to pay the amount due to him, and thereupon he entered a release upon the margin of the record as follows: “I, the undersigned, administrator of the estate of Charles Gimbel, the assignee of the cestui que trust in the deed of trust recorded on this page, and executed by Prospero A. Pignero and wife, do hereby acknowledge to have received full satisfaction of said deed of trust, and I do forever release the premises and property herein conveyed, from all lien on account of said conveyance. Witness, my hand and seal, this 6th of April, 1872. Bernard N. Sternberg, Administrator of Charles Gimbel, deceased. [[[[[Seal.]”

This release sets out with the false...