Hale v. Meegan

• Decision Date: 31 October 1866
• Citation: 39 Mo. 272
• Parties: THOMAS HALE AND DANIEL F. MILLER, Appellants, v. JAMES MEEGAN AND ROGER C. MCALLISTER, Respondents.
• Court: Missouri Supreme Court

39 Mo. 272

THOMAS HALE AND DANIEL F. MILLER, Appellants,

v.JAMES MEEGAN AND ROGER C. MCALLISTER, Respondents.

Supreme Court of Missouri.

October Term, 1866.

1. Witness--Party--Trustee.

A trustee having no substantial interest in the matter in controversy is a competent witness for his co-defendant.

2. Injunction--Dissolution--Damages.

The statute (R. C. 1855, p. 1249, sec. 13) limits the amount of damages at ten per cent. upon the amount enjoined to cases in which money has been actual stayed by the injunction; in other cases, the defendants may recover the damages actually sustained.

Appeal from St. Louis Circuit Court.

Espy & Knight, for appellants.

Bakewell & Farish with T. T. Gantt, for respondents.

FAGG, Judge, delivered the opinion of the court.

The petition of the appellants (plaintiffs below) shows that they were the owners of two distributive shares of the estate of Richard Phillips, deceased; that Hale had purchased the share of Eliza Robinson, wife of Joseph Robinson, deceased, and that his co-plaintiff (Miller) had acquired the share of Thomas Phillips, the said Eliza and Thomas being heirs-at-law of the said Richard Phillips, deceased. An order was asked to restrain the defendant Meegan from selling as trustee certain property conveyed to him in trust for the benefit of his co-defendant McAllister by the said Thomas Phillips, Joseph Robinson and wife, together with Robert Phillips, another one of the distributees of said estate.

It charged that Richard Phillips died at the city of St. Louis, in the year 1857, seized and possessed of an estate amounting in value to about $40,000, including among other things a steamboat called Flying Cloud; that shortly thereafter McAllister became the administrator of said estate, and in pursuance of an order of the St. Louis Probate Court sold said boat at private sale for the sum of $15,000--Joseph Robinson, Thomas and Robert Phillips being the purchasers; of this amount $2,000 was paid in cash, and five joint notes executed for the remainder, to secure which a deed of trust was executed by the said parties conveying the said boat and tackel to one Burke, as trustee for the benefit of McAllister; that shortly thereafter there was paid on said notes the sum of $3,900 in cash, and that McAllister by false and fraudulent representations and threats obtained additional security, towit, the conveyance to said Meegan in trust of all their several interests in the estate of Richard Phillips, deceased. The said Robinson, Thomas and Robert Phillips took possession of the boat and continued to run the same until the 2d day of December, 1858, when said McAllister fraudulently caused the said Burke to take the steamboat out of the possession of the purchasers and to sell her privately, at which sale the said McAllister, then and there being administrator as aforesaid, became the pretended purchaser thereof at the nominal sum of $1,000, and on the same day sold her for $14,000, &c. That McAllister afterwards realized large sums from a policy of insurance on the boat, as well as from several average bonds, all of which had been assigned to him by the purchasers. That the said sum of $14,000 exceeded the balance due on the notes so executed by the purchasers, and that he had also retained and appropriated to his own use the sum of $2,826.44, which had been ascertained in final settlement of said estate to be the distributive share of Robert Phillips, then dead, all of which was claimed by plaintiffs as credits to which they were entitled.

Plaintiffs alleged that the assets of the estate were not properly accounted for by McAllister; that a correct settlement of his accounts with the estate would show that these notes executed by the said parties for the said steamboat in the year 1857 had been fully paid off and discharged, and requiring him to account, &c.

The answers of defendants were separate. Meegan denied any connection with the whole matter except as trustee, and McAllister denied all the allegations of fraud or improper conduct upon his part, denied that the sale at which he became the purchaser of the boat was private, or that he bought as the administrator of the estate of Richard Phillips and that he had received the amounts charged to have been collected by him on the policy of insurance or the average bonds.

A motion was made by the defendants to dissolve the injunction, upon the trial of which there was an investigation of all the facts in the case, upon which it was determined by the court that at the sale made by Burke in the month of December, 1858, McAllister “purchased in trust...