Hawkins v. Ridenhour

• Citation: 13 Mo. 125
• Parties: HAWKINS & BLACKWELL, ADM'RS OF BLACKWELL, v. RIDENHOUR.
• Decision Date: 31 January 1850
• Court: United States State Supreme Court of Missouri

13 Mo. 125

HAWKINS & BLACKWELL, ADM'RS OF BLACKWELL,

v.RIDENHOUR.

Supreme Court of Missouri.

January Term, 1850.

APPEAL FROM CRAWFORD CIRCUIT COURT.

This was an action of debt brought by Ridenhour, plaintiff below, against Wm. E. Hawkins, administrator, and Nancy Blackwell, administratrix of Richard Blackwell, deceased. The suit was brought on a note for $400, given to the plaintiff by Isaiah King, Thomas I. Veech and Richard Blackwell, bearing 10 per cent. interest from date, payable on or by the 1st of March 1839, and dated 19th November, 1838. At the May term, 1849, the defendants filed the statutory plea, and the parties went to trial. The plaintiff, Ridenhour, offered in evidence the note sued on, and the letters of administration granted by the clerk of Crawford county to the appellees as administrator of Richard Blackwell, dated, 23rd December 1839, and here cloced his case. Thereupon, the defendants offered in evidence, on their part, the notice of grant of letters of administration, signed by Wm. E. Hawkins, administrator, alone, stating that the undersigned had obtained from the clerk of Crawford County Court, letters of administration on the estate of Richard Blackwell, requiring all persons indebted to said estate to make immediate payment, and these having claims against the estate to present them within three years, or they would be barred. The affidavit of E. L. Edwards, publisher of the “Jefferson Enquirer,” states that this notice was published in his paper, first, on the 23rd of January, 1840, and thereafter for three weeks, on the 30th January and 6th and 13th February. G. P. Wyatt was then introduced as a witness, whose testimony is fully set out in the bill of exceptions, the substance of which is, that Isaiah King was largely indebted; that some judgments had been obtained against him; that one Baker, of Montgomery, had brought suit against him for some nine hundred dollars, principal, and that the petition had been served by witness while sheriff of Gasconade: that one McKenney, had brought suit against him for about this amount; that witness, Ridenhour, and R. M. Wyatt, all being the intimate friends of King, went to him and advised him to take his property to Louisiana or Mississippi, sell it for the best price he could, and pay his debts, and if he could not pay them all to pay pro rata. Witness said he believed that King's property would not have paid more than two-thirds of the judgments obtained and the debts then sued upon. He further said he was not certain that King would apply the money to the payment of his debts, but believed that Ridenhour had implicit confidence in King, that he would come back and pay his debts as far as his money would go. He further states, that King was indebted to his sister-in-law, Mrs. Lowry, about $250; to himself about $100, and to his brother, R. M. Wyatt, about $100, when they advised him to go. That there was a negro sold, prior to King's taking away his property, under execution against King, and that Ridenhour purchased the negro at constable's sale, King having furnished him the money to do so; which he gave up to King a short time before he left, and he took her off with the rest of his negroes. That King did not take his family at that time, but returned in some six or eight months after he left and staid at home some three or four months and then went away again, and some three or four months after King left the second time, his family left, and he has never resided in Gasconade county since. That King did not pay any of his debts on his return, and knows that the McKenney and Baker debts, Mrs. Lowry, R. M. Wyatt and himself, were never paid. King left a large amount of notes and accounts with one Thomas L. Veech to collect for him, and Veech said to witness that he had collected all the notes and accounts except a small amount. (The declaration of Veech was objected and excepted to by the plaintiff.) Witness further said, that Ridenhour had sued Veech, one of the securities, obtained judgment and had execution, but made nothing, as Veech was insolvent. That in 1845, Ridenhour asked witness if he believed the money could be made out of Blackwell's estate, or whether he believed it would be barred by limitation, and witness told him that he did not know, but that he had better advise with Mr. Scott of Potosi, as he was an old and experienced lawyer. Here the case closed, the foregoing being all the evidence offered on either side.

At the instance of the plaintiff, the court gave to itself, sitting as a jury, the following instructions: 1. That to enable the defendant to set up the bar of three years, they must show that within thirty days after the grant of letters, they gave the notice required by law to all creditors, and that the commencement of publication in the newspapers, after the expiration of the thirty days, is not sufficient. 2. That said notice to be legal, should be signed by both the administrators, and if the court find it was signed by one administrator only, it is in law no notice at all. 3. That the commencement to publish the notice in the newspapers thirty-one days after the grant of letters, will not operate as notice to the plaintiff. 4. That in order to entitle the defendants to be discharged, it must appear that the plaintiff either extended the time of payment by a legal and valid agreement, founded upon a valuable consideration, without the knowledge of the security, or that he, without the knowledge of the security, released property upon which the law gave him a lien; but on the contrary, if the plaintiff honestly advised the principal to take his property to the best market, sell it for the best price, and return and pay his creditors pro rata, with the proceeds, that such a transaction would be fair and legitimate, and would not be injurious to the present defendant's intestate estate.

The defendants asked the following instructions, which were refused: 1. That the omission to publish the notice to creditors of the grant of letters within thirty days, does not prevent the operation of the statute of limitations; it merely postpones the operation of the statute for the length of time the omission continued. 2. That if the court, sitting as a jury, believes from the evidence, that Ridenhour, the plaintiff, advised King, the principal in the note to remove his property from the State, and assisted him in doing so, that they thereby perpetrated a fraud upon the security in the note, and precluded himself from recovering against the securities. 3. That the notice to creditors being signed by Hawkins alone, does not vitiate the notice, 4. That the security of King had an interest in having King's property retained within the jurisdiction of the courts of this State, and if the jury believe from the evidence, that Ridenhour assisted in removing his property from this State, he has thereby diminished his chances for making the debt from the principal, and has thereby released the securities.

The court found a verdict for the plaintiff, upon which judgment was rendered, and the defendants prayed an appeal, and have brought the case to this court.JOHNSON, for Appellee. From the instructions given and refused, it is manifest that the Circuit Court was called upon to decide the following points: 1. Whether the notice signed by the administrator alone, when there was an administratrix also, is any notice at all. 2. Whether, regarding it as a notice, the commencement to publish it thirty-one days instead of thirty after the grant of letters, does not deprive the administrators of setting up as a bar, the special limitation of three years. 3. Whether the acts of Ridenhour, under the circumstances, discharged the surety.

1. Upon the first point, it is insisted that the law laid down by the court, is correct. Where there is more than one executor or administrator, the law requires that a majority shall join in receipts and discharges, otherwise they shall be void. Administrators, art. 2, § 51, Stat. 1835. Now, one is not a majority of two, therefore where there are but two administrators, they must both join to satisfy the statute, and render receipts and discharges valid. Why should both administrators, where there are only two, be required to sign, in order to make a valid discharge in fact, and both not be required to sign a notice, which, when published, is to operate as a discharge in law. In pleading, the rule is, that all the administrators must join. Hunt v. Kenney, 2 Penn. 721; Bodle v. Hulse, 5 Wend. 313; Chitty's Pl.

2. Upon the second point, the court laid down the law correctly. In the instruction given for plaintiff by the court, it is conceded in accordance with the opinion of this court, in Montelius & Fuller v. Sarpy, 11 Mo. R. 237, that it would be sufficient, had the publication of the notice to creditors been commenced within thirty days after letters granted. The point is, that it was too late to commence after the thirty days had expired. In the computation of time, the English rule (which is also adopted in some of the courts of this country) is, that where an act is to be done within so many days after a specified fact, the day of the fact is included. Starkie's Ev. 1399, title Time; Castle v. Burdett, 3 Term R. 623; Glassington v. Rawlins, 3 East, 407; Arnold v. United States, 9 Cranch, 104; Pierpont et al. v. Graham, 4 Wash. C. C. R. 232. But perhaps the modern rule is to exclude the first day and include the last. The letters were granted 23rd December, 1839, and as December has 31 days, if you include the first day, the 30 days expired on the 21st January, 1840, if you exclude the first day, the 30 days expired on the 22nd January, 1840. The publication of notice (if it can be regarded as such) was not commenced until the 23rd January, two days too late by the English rule and one day too late by the modern rule. If the administrator could delay one day, he might five, and if five, then ten,...