Gorg v. Rutherford

• Decision Date: 07 October 1930
• Docket Number: No. 21220.,21220.
• Citation: 31 S.W.2d 585
• Parties: GORG v. RUTHERFORD et al.
• Court: Missouri Court of Appeals

31 S.W.2d 585

GORG v. RUTHERFORD et al.

No. 21220.

St. Louis Court of Appeals. Missouri.

October 7, 1930.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

"Not to be officially published."

Interpleader suit by Arthur Gorg against Frank Rutherford, Luella Bell, and others. From a judgment for Luella Bell and others, Frank Rutherford appeals.

Reversed, and remanded, with instructions.

Preston Quick, of St. Louis, and Jesse M. Owen, of Union, for appellant.

W. L. Cole and T. P. Hukriede, both of Union, for respondents.

BENNICK, C.

This is an interpleader suit which was instituted by Arthur Gorg, the sheriff of Franklin county, and the substitute and succeeding trustee in and under a certain deed of trust. Acting in such latter capacity, on December 22, 1928, he conducted a foreclosure sale under the provisions of the deed of trust, which had been theretofore executed in favor of Mary Rutherford by O. C. and Olga M. Bell, the proceeds of such sale to be paid to respondents and appellant herein.

In his petition he alleged that he had in his hands, as the proceeds of the sale, the sum of $4,426.75; that he was ready and willing to pay over the said sum to the parties hereto, but that said parties had conflicting claims to the money, arising out of a common source, but adverse to each other; that said claims had reasonable foundation as to whether payment might be safely made by plaintiff; that, in order that he might be absolved from loss through payment to the wrong claimant, he desired the adjudication of the court as to the rights of the parties, who were threatening to sue him for their separate interests in the fund; and that he had no adequate remedy at law. His prayer was for an order on the parties defendant, requiring them to interplead for the sum in his hands, and for such other and further orders in the premises as to the court should seem just and proper.

At the next term of court the defendants formally entered their appearances, and with their consent the attorneys for plaintiff were allowed a fee of $50, and plaintiff was discharged, leaving the sum of $4,376.75 in the registry of the court, for which defendants were to interplead.

The parties interpleading were appellant, Frank Rutherford, and respondents Luella Bell, Willie W. Rutherford, Anna Martin, Emma Snider, and J. E. Rutherford, all brothers and sisters, and the sons and daughters and sole heirs at law of Mary Rutherford, deceased. The latter died intestate on July 23, 1922, whereupon respondent Luella Bell was named administratrix of her estate, which consisted of the Bell note for $6,000 with accrued interest thereon, amounting in the aggregate to the sum of $7,144.80.

On November 11, 1925, final settlement was made by the administratrix, and approved by the court, and an order of final distribution was entered, awarding to each of the six heirs, including J. E. Rutherford, the sum of $1,190.80, as his or her proportionate share in the estate. Having found in the course of the settlement that the makers of the note had meanwhile surrendered the land described in the deed of trust to the heirs of the deceased, the court further ordered that the administratrix assign the note to all of the heirs as their several interests might appear, and file receipts from the latter for the balance due them as shown by the terms of the final settlement. After the above order was entered, the note was duly assigned to the heirs, and the land was thereafter held by them until the time of the foreclosure sale.

Among the papers of the deceased were two receipts, dated February 11, 1922, and signed by respondent J. E. Rutherford, which are spoken of in the pleadings as evidences of advancements. The first of such papers was a receipt for the sum of $480, advanced by the deceased to her son, J. E. Rutherford, and in the receipt he agreed that the same should be considered a part of his inheritance at the death of his mother, and that such sum should be deducted from his share of the estate at the time of final distribution. The second paper was an ordinary receipt for $271.80, being the balance in full of respondent J. E. Rutherford's one-sixth interest in the amount received from the sale of his parents' homestead.

It appears that respondent J. E. Rutherford became indebted to appellant, Frank Rutherford, in the sum of $1,150, as evidenced by a promissory note, and on October 17, 1928, in consideration of the return of the note, the former executed an assignment to the latter of his one-sixth interest in and to the assets of the estate, as such interest had been determined in the order of final distribution.

Appellant testified that, at the time he took the assignment, he did not know that his mother had advanced his brother any money, and that he did not hear of such fact before the trustee's sale. He further testified that his sister, who had served as administratrix, did not inform him of the existence of the two receipts for advancements until after he had taken the assignment in question. As to this matter, he was contradicted by his sister, however, whose testimony was that she had shown him the receipts on two different occasions, and, further, that she had called the attention of the probate court to them at the time of the final settlement.

At the time of plaintiff's discharge, it was agreed that the share of each heir in the sum deposited in the registry of the court was $729.45, and that such sum should be paid forthwith to appellant, and to each of the respondents save respondent J. E. Rutherford, who had received the advancements from his mother prior to her death, as we have heretofore shown. Consequently, the only point left to be litigated was in regard to what disposition should be made by the court of what would otherwise have been the latter's share.

In the joint interplea filed by respondents, they set up the facts about as we have narrated them, including the death of their mother, the appointment of respondent Luella Bell as administratrix, the advancements to respondent J. E. Rutherford during the lifetime of the deceased, the final settlement, and the foreclosure sale; that respondent J. E. Rutherford, nor any one for him, had ever paid the advancements, which were for a greater sum than his share of the estate; and that he was not entitled to, nor did he claim, any part of said proceeds. The prayer was that each of the remaining five heirs, including appellant, be found entitled to an undivided one-fifth of the proceeds of the sale, less attorney's fees and costs.

In appellant Frank Rutherford's plea he denied that any advancements had been made to respondent J. E. Rutherford, and, after setting up the terms of the final settlement in the probate court, awarding to each of the heirs an undivided one-sixth interest in and to the assets of the estate, he pleaded that respondent J. E. Rutherford had on October 17, 1928, assigned his interest to appellant for a valuable consideration; that, at the time of the trustee's sale, respondent J. E. Rutherford had no interest in the proceeds, but that appellant was the owner of a two-sixths interest therein; and that, because of such facts, appellant was the owner of, and lawfully entitled to, the sum of $729.45 in the registry of the court, for which sum he prayed judgment.

The finding and judgment of the court was that respondent J. E. Rutherford had no interest in the the sum in dispute; that appellant was not entitled to a two-sixths interest under and by virtue of the purported assignment of respondent J. E. Rutherford's interest to him; and that respondents Luella Bell, Willie W. Rutherford, Anna Martin, and Emma Snider, and appellant, Frank Rutherford, should each receive an undivided one-fifth of the sum of $729.45, less costs. After the entry of such judgment, appellant filed his motion for a new trial, and, when the same was overruled, he duly perfected his appeal to this court.

As the case comes to us on this appeal, we find appellant contending that the evidence did not warrant the finding and judgment of the trial court in respondents' favor, but that instead the judgment should have been for him, as prayed for in his interplea. Briefly stated, his position here is the same as that taken below, namely, that there was a final judgment of the probate court, unappealed from, awarding to respondent J. E. Rutherford a distributive share in the estate; that such share was thereafter validly assigned by him to appellant herein; and that appellant thereupon became entitled to receive the former's share out of the proceeds derived from the trustee's sale.

Respondents argue, on the other hand, that the purported assignment was void, in that it was not the assignment of a thing of value; that, even if it should be held to have been sufficient in its terms to constitute an assignment, yet the share or interest of the distributee was assigned subject to the right of the administratrix to have it applied to the satisfaction of the indebtedness of such distributee to the estate; and, finally, that the order of distribution was nugatory and void, and the final settlement incomplete to the point that it did not have the force and effect of a final judgment.

The issues for our consideration are thus tersely and...