Hamilton v. Clark

• Decision Date: 11 April 1887
• Parties: JOHN R. HAMILTON, ADMINISTRATOR, Respondent, v. JEREMIAH V. CLARK, Appellant.
• Court: Kansas Court of Appeals

25 Mo.App. 428

JOHN R. HAMILTON, ADMINISTRATOR, Respondent, v. JEREMIAH V. CLARK, Appellant.

Court of Appeals of Missouri, Kansas City.

April 11, 1887

APPEAL from Ray Circuit Court, HON. GEORGE W. DUNN, Judge.

Reversed and remanded.

The case and facts are stated in the opinion.

JOSEPH E. BLACK, for the appellant.

I. The sale and transfer to appellant, by Hiram M. Clark, prior to his death, by an instrument of writing, for a valuable consideration paid in full therefor of the money or property in controversy, vested in appellant the ownership and right to the possession of the same and Hiram M. Clark, in retaining the same, held it as bailee and defendant, after the said Hiram M. Clark's death, in taking the same, was guilty of no wrong, and did not thereby become administrator de son tort, and had the same right to take and retain said property as one who had loaned another his horse has to take his own property after the death of the party to whom the horse was loaned. 2 Schouler's Personal Property, 227.

II. Money is property, and is so treated in the petition of respondent and was conveyed, by the contract in evidence to appellant, and the same rules govern in the conveyance as would apply in the conveyance of other personal property. 1 Schouler's Personal Property, 84.

III. The judgment vested the ownership and possession of the property in controversy in the respondent when the same was conveyed to appellant by a contract in writing, which could not be set aside except in a direct proceeding for that purpose, and there is no evidence tending to show that said contract was not founded in good faith, or that there was want of a valuable consideration, or that Hiram M. Clark did not intend to convey the property in controversy, or that it is not included in its terms, or that Hiram M. Clark did not execute the same, or that the consideration was inadequate or was not paid, or that there was want of legal capacity to convey, or that the contract operated upon subject matter not susceptible of conveyance, or that it was uncertain or ambiguous, therefore, the contract unimpeached by the evidence remains firm and effectual and conveys the property or money to defendant. Hart v. Railroad, 65 Mo. 509; Carter v. Abshin, 48 Mo. 300.

IV. This form of action is not the correct proceeding, if the theory of respondent is correct, viz: That appellant is an administrator de son tort, as the judgment determines that respondent is the owner of the goods in determining the question whether appellant was guilty of wrong in taking his own property. The proceedings should have been in the probate court under the statute providing for recovery of property unlawfully detained. 1 Rev. Stat., sects. 75 to 78, inclusive.

V. Evidence is admissible to prove the actual consideration, although the contract of sale specifies a consideration, and the real consideration, as appears in evidence, was taking care of said Hiram M. Clark, now deceased, during his prolonged sickness. Bartlett v. Matson, 1 Mo.App. 151; Nedyidek v. Meyer, 46 Mo. 600.

VI. The fact that appellant had the contract in possession, as evidenced by his offering the same in evidence, is conclusive proof that he was rightfully in possession thereof, and that the same was delivered to him by said Hiram M. Clark during his lifetime, there being no evidence to the contrary.

VII. The evidence shows that Hiram M. Clark's sickness was very prolonged; that it was extremely offensive in its character, from the effluvia arising from his rapidly wasting body; that he, a great part of the time, required attention day and night from appellant and family; that appellant and family were in straitened circumstances, and, by reason of the limited room of their dwelling, were compelled to be confined in a small room with said Hiram M. Clark during his long sickness; that the health of appellant's wife was completely broken down by her watchfulness, solicitude, care and exposure in her attentions to said Hiram M. Clark, and has never recovered since; and said Hiram M. Clark, wishing to fully recompense them therefor, so far as his means would admit, and in consideration of said services, as agreed between the parties, made the contract or conveyance in evidence, and to defeat his equitable intentions, upon grounds purely technical, would be a mockery of justice.

VIII. Attention is called to other points in declarations of law asked by appellant, not herein presented.

C. T. GARNER & SON, for the respondent.

I. The case, as presented upon the record, shows clearly a case on the part of the defendant, by fraudulent means, to take the entire estate of his brother, and appropriate it, thereby depriving his other brothers and sisters from any share in the estate. If he had a bona fide, just claim for services and attention rendered deceased, while sick, the appellant should present his claim therefor to the probate court, for adjudication and allowance, where justice could be done to both parties.

II. There is no evidence that there was any contract for services rendered deceased in taking care of him while sick.

III. To constitute a donatio mortis causa there must be an executed gift, accompanied by an actual delivery, and so, under a contract for services rendered while sick, there must have been a change of possession. The money, before the title passed, must have been delivered. The following authorities are cited in support of respondent's theory of the case: Spencer v. Vance, 57 Mo. 427; Atkins v. Hulse, 62 Mo. 597; 1 Parsons on Cont. [5 Ed.] 234; Trorlect v. Merjenecker, 1 Mo.App. 482; 42 New Hampshire. 114; Martin v. Ramsey, 5 Humph. (Tenn.) 349; Payne v. Powell, 5 Bush (Ky.) 248.

IV. Gifts and contracts made causa mortis are not favored in law, are a fruitful source of litigation, create a strong temptation to the commission of fraud, and should not be sustained.

ELLISON J.

This is an action of replevin, based on the following petition:

" Plaintiff states that he is public administrator of Ray county, Missouri, having in charge the estate of Hiram M. Clark, deceased; that, as such administrator of said estate, he is the owner, and entitled to the possession of, the personal property, to-wit: Eight hundred and thirty-five dollars, which the defendant wrongfully detains from the plaintiff; that plaintiff, on the _______ day of April, demanded of defendant the possession of said property aforesaid. Plaintiff, therefore, asks judgment for eight hundred and thirty-five dollars, with six per cent. interest on the same from the time of the demand aforesaid to the rendition of judgment, one hundred dollars damages for the detention thereof, and the costs in this behalf expended."

The answer claimed title to the money.

The finding was for the plaintiff, the judgment being in the ordinary form of a money judgment: " The court doth find the issues for the plaintiff, and doth find the amount due plaintiff by the defendant to be the sum of eight hundred and thirty-five dollars. It is, therefore, considered and adjudged, by the court, that the plaintiff recover of the said defendant, as well the said sum of eight hundred and thirty-five dollars, as also his costs," etc.

There was no affidavit filed, or bond given; this, however, does not hinder the action, but only prevents plaintiff getting the property till after judgment in his favor. Eads, Adm'r, v. Stephens, 63 Mo. 90. There was no evidence as to damages; the only thing tried being the ownership of the money. The judgment in this cause cannot stand.

I. In the first place, it is not justified by the action or the evidence. It is an ordinary judgment, as if the action had been assumpsit, instead of replevin. The action of replevin has for its primary object the recovery of specific personal property. The judgment here is not responsive to either the petition, or the evidence under it. The defendant's motion in arrest should have been sustained.

II. In the next place, the petition fails to state a cause of action. Money is not the subject of an action of replevin, unless it be marked, or designated in some manner, so as to become specific as regards the power of identification, such as being in a bag, or package. Wells on Replevin, sect. 177; Ames v. Miss. Boom Co., 8 Minn. 467; Sager v. Blain, 44 Hand. (N. Y.) 445; Skidmore v. Taylor, 29 Cal. 619. This is the view had by Scott, J., as appears in Pelkington v. Trigg (28 Mo. 95). It is so stated to be the law by Blackstone (vol. 2, p. 151). In order to have stated a cause of action, the money should have been described, so as to give it some individuality. I am not aware of any decision upholding a replevin suit for money, without some specific description for its identification. It is true, this action is permitted in this state for grain, which has been mixed in bulk with other grain (Kaufman v. Schilling, 58 Mo. 218; 62 Mo. 402), but those cases are not applicable to this. I apprehend, also, that the description in those cases was such as afforded an identification of the particular lot of grain sought to be recovered, although each particle or kernel might not be the subject of identification.

III. It appears, from the evidence in this cause, that the intestate and defendant were brothers; that defendant and his family moved to the state of Colorado, some time in 1883, and were joined by the intestate in the state of Kansas, who accompanied them to Colorado; that the intestate was sick, and was taken care of, boarded, and nursed, by defendant and his family, for a period of fourteen or sixteen months. Near two weeks prior to his death, he executed the following instrument:

" MORRISON, Jefferson County, Colorado.

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