Hagan v. Lantry

• Citation: 89 S.W.2d 522,338 Mo. 161
• Decision Date: 18 December 1935
• Docket Number: 32198
• Parties: Horace H. Hagan and Eugene Hagan, Appellants, v. Mary J. Lantry and Helen Lantry Daly
• Court: United States State Supreme Court of Missouri

89 S.W.2d 522

338 Mo. 161

Horace H. Hagan and Eugene Hagan, Appellants, v. Mary J. Lantry and Helen Lantry Daly

No. 32198

Supreme Court of Missouri

December 18, 1935

Appeal from Jackson Circuit Court; Hon. A. Stanford Lyon Judge.

Reversed and remanded (with directions).

Cooper Neel, Kemp & Sutherland and Horace H. Hagan for appellants.

(1) Where assets of a Kansas partnership are in the hands of an heir or a devisee or a legatee, they are subject to the claims of an Oklahoma creditor of the partnership and jurisdiction of the person being had, such creditor may in Missouri maintain an action in equity to subject such assets in the hands of such heir, devisee or legatee, to such claim, even though such assets were, during his lifetime, transferred to one of the partners who later died, and even though such assets then passed by reason of administration proceedings in Kansas (which proceedings were unknown to the creditor) to such heir, legatee or devisee. Such administration proceedings have no extraterritorial effect and are not, in Missouri, binding on the Oklahoma creditor who had no knowledge of them. Borer v. Chapman, 119 U.S. 587; Board of Public Works v. Columbia College, 17 Wall. 521, 21 F. 687; Williams v. Gibbes, 17 How. 239, 15 L.Ed. 135; Chewelt v. Brown, 17 F. 820; Hale v. Coffin, 114 F. 567; Bartleson v. Feidler, 149 F. 299; Security Trust Co. v. Dent, 104 F. 380; Wilson v. Hartford Ins. Co., 164 F. 553; Rohrbaugh v. Hamblin, 57 Kan. 393; Toner v. Conqueror Trust Co., 293 P. 745; Emmons v. Gowdy, 140 Mo. 498; Lepperd v. Jeffries, 181 Mo.App. 106; Banks v. Dowdy, 175 Mo.App. 478; Walker v. Deaver, 79 Mo. 664; Metcalf v. Smith, 40 Mo. 572; State ex rel. Brouse v. Byrnes, 129 Mo.App. 474; Higbee v. Billicks, 244 Mo. 411; Brown v. Fletcher, 210 U.S. 82; Farthing v. Sams, 296 Mo. 442; West v. Theis, 15 Idaho 167, 96 P. 932, 17 L. R. A. (N. S.) 472, 128 Am. St. Rep. 58. (2) The undisputed evidence shows that Charles Lantry had the right and power to bind the partnership of B. Lantry Sons by signing its name to the promissory note executed and delivered to W. G. Hagar, guardian. Cargill v. Corby, 15 Mo. 425; Carter v. Steele, 83 Mo.App. 211; 47 C. J. 866; 20 R. C. L., sec. 211; Kimbro v. Bullett, 22 How. 256; March, Marvin & Lemon v. Wheeler, 59 A. 410, 107 Am. St. Rep. 40; Reed v. Linder, 251 P. 157; Seufert v. Gille, 230 Mo. 453, 131 S.W. 102, 31 L. R. A. (N. S.) 471; Irwin v. Willier, 110 U.S. 499. (3) The appellants are not barred by laches or limitations. Kroenung v. Goehri, 112 Mo. 641; Western Union Telegraph v. Davenport, 97 U.S. 369; 21 C. J. 241; Chouteau v. Allen, 70 Mo. 290; Lindell Real Est. Co. v. Lindell, 140 Mo. 61; Leslie v. Carter, 240 Mo. 552; Meriwither v. Averby, 228 Mo. 218; Matthews v. Van Cleve, 282 Mo. 19; Davis v. Keiser, 297 Mo. 1; 21 C. J. 219; O'Brien v. Wheelock, 184 U.S. 450; Northern Pac. Ry. Co. v. Boyd, 228 U.S. 482; Gross v. Watts, 206 Mo. 373; Miller v. Connor, 177 Mo.App. 630; Lyman v. Campbell, 34 Mo.App. 213; State of Kansas v. U.S. Fed. G. Co., 14 S.W.2d 576.

Johnson, Lucas, Landon, Graves & Fane for respondents.

(1) The judgment of the circuit court is correct and should be affirmed. Hagar, the guardian, who instituted the suit had previous thereto asserted his claim against the assets and property of B. Lantry Sons, which had been transferred to Freeman, as trustee for creditors. (2) Hagar, the guardian, and the appellants were guilty of such laches and such negligent action as prevents a recovery. Meyer v. Christopher, 176 Mo. 580, 75 S.W. 750; Boyd v. Buchanan, 162 S.W. 1075, 176 Mo.App. 56; Board of Public Works v. Columbia College, 17 Wall. 521, 21 L.Ed. 687; Continental Natl. Bank v. Heilman, 81 F. 36, writ of error denied, 43 L.Ed. 1180. (3) The appellants cannot recover. The evidence does not show that at the time of the institution of the suit or at the time of trial either of the respondents had any moneys or personal or real property which had been purchased from the proceeds of the sale of partnership property. Walker v. Deaver, 79 Mo. 664, 5 Mo.App. 139.

Ferguson, C. Hyde and Bradley, CC., concur.

OPINION

FERGUSON

This is an equity suit originally brought by W. G. Hagar, guardian of Eulilia Hagan, Virginia Hagan, Horace H. Hagan and Eugene Hagan (brothers and sisters), minors, to establish and declare a trust in certain partnership assets and property of the firm of B. Lantry Sons, or the proceeds thereof, in favor of said minors. The minors, the real parties in interest, were at all times residents of Logan County in the Territory and State of Oklahoma and in 1903 W. G. Hagar was duly appointed "Guardian of the persons and estate" of said minors by the Probate Court of Logan County in the then Territory of Oklahoma. This suit was instituted in the Circuit Court of Jackson County. The guardian, Hagar, died before the trial of the cause and thereupon, each of the wards having attained majority the suit was revived in their names as plaintiffs. At the trial of the cause it developed that subsequent to the revivor and prior to the trial each of the sisters Eulilia Hagan and Virginia Hagan had been paid her full share of the estate and they withdrew as plaintiffs leaving the brothers Horace H. Hagan and Eugene Hagan as parties plaintiffs. On a trial, in the Circuit Court of Jackson County, the chancellor found for the defendants and plaintiffs have appealed from the judgment entered.

We are of the opinion that it will facilitate the presentation and discussion of the pleadings and issues involved, and an understanding of the theory of the suit, if we first undertake a statement of facts, attempting something of a chronological arrangement and history of the various transactions. The estate of the Hagan children, minors, residents of Oklahoma, was administered in the Probate Court of Logan County, Oklahoma. As stated, Hagar, who was their first cousin, was duly appointed, in 1903, by that court, as guardian of their "persons and estates." Two brothers Charles J. Lantry and Henry E. Lantry composed a partnership doing business under the firm name of B. Lantry Sons. The two Lantrys as a partnership, under the firm name, operated on a large scale in both "railroad contracting and farming." In their contracting business they engaged in railroad construction work "dirt work, stonework, ballasting and general railroad work." In that connection they operated "stores" or "commissaries on their works" at which they sold merchandise and supplies to their employees at a profit of "twenty-five to fifty per cent." The number of these stores in operation, at any one time, varied from "two to ten." They carried on railroad construction work at various points in Arizona, California, Illinois, Iowa, New Mexico, Texas and Kansas and owned a large amount of machinery, tools and equipment used in their construction work. They owned and operated a large ranch or farm of several thousand acres near Strong City, Kansas, which was stocked with horses, mules, cattle and hogs, also farming implements and machinery. It seems they also owned other farm lands and real estate in Kansas, Iowa, Wisconsin, Illinois and Texas. In carrying on their various enterprises the Lantrys borrowed money from time to time. The record indicates that the Lantrys were residents of the State of Kansas. Their "main office" was at Strong City, Kansas. They also maintained an office at Kansas City, Kansas. One Eugene Hagan (not the party plaintiff herein) an uncle of the Hagan children, and also the uncle of Hagar, their guardian, was an attorney and resident of Topeka, Kansas. From his letters, in evidence, he appears to have been attorney for the Lantrys. One witness described him as an "intimate friend" of Charles J. Lantry. Anyway Attorney Hagan in Topeka, acting on the part of the Lantrys, and in good faith, seems to have initiated and carried on negotiations between the guardian Hagar in Oklahoma and the Lantrys in Kansas relative to a loan from the minors' estate of $ 20,000 to the Lantry partnership and to have recommended and attended to the details thereof. Hagar as guardian arranged to make the loan and, apparently pursuant to Hagan's direction, sent a check in that amount, by mail, to Hagan at Topeka, Kansas. The check was made payable to "C. J. Lantry." Acknowledging receipt of the check Hagan advises Hagar that he is attorney "for the outfit," clearly meaning the Lantry partnership doing business under the firm of B. Lantry Sons, and states: "I cannot conceive anyway on earth that this money could be lost. I regard it much safer than I would in the bank. . . . My best judgment is . . . that they have in money first mortgage bonds and in other property of absolute fixed value more than one million dollars above any liability. They have thirteen thousand acres of land in their ranch that there is not a penny against . . . if there is ever any question about their liability I would be the first man to reach for this money for these children." Attorney Hagan delivered the check and a promissory note for $ 20,000 was executed and forwarded to Hagar, at Guthrie, Oklahoma, together with 96 shares of bank stock as collateral security therefor. The note was as follows:

"Guthrie, O. T., June 17, 1903.

"On demand after one year from the date hereof, we promise to pay to the order of W. G. Hagar, Guardian of Eulilia Hagan, Virginia Hagan, Horace H. Hagan and Eugene Hagan, minors, the sum of twenty thousand dollars ($ 20,000.00), at the City of Guthrie, in the Territory of Oklahoma, with interest at the rate of seven per cent per annum, payable semi-annually.

"This note is given for a full and valuable consideration, and is secured by 96 shares of stock of the First National Bank of Topeka,...