Hempstead v. Hempstead's Adm'r

• Decision Date: 31 March 1858
• Parties: HEMPSTEAD, Plaintiff in Error, v. HEMPSTEAD'S ADMINIS A TOR et al., Defendants in Error.
• Court: Missouri Supreme Court

27 Mo. 187

HEMPSTEAD, Plaintiff in Error,

v.HEMPSTEAD'S ADMINIS A TOR et al., Defendants in Error.

Supreme Court of Missouri.

March Term, 1858.

A judgment was recovered against A. and B. on an official bond, in which B. was principal and A. his security. B. died leaving him surviving a widow and daughter, his only heir. A. was compelled to pay a portion of the judgment. C., to whom the judgment had been assigned and who had control over it, in consideration of the compromise and dismissal of various suits instituted against him by the heir of B., covenanted by instrument under seal with the said widow and heir never to use or enforce said judgment so far as the same could be made to affect the heirs, executors or administrators of B., or any property owned by them as such heirs, etc., except as to two specified tracts of land, with respect to which he reserved the right of using said judgment as he might see fit. He also reserved the right of using said judgment against A. and his property. Notwithstanding the execution of this instrument, C. procured the allowance by the Probate Court of said judgment as a claim against B.'s estate, and it was classed in the fourth class of allowed claims. A. procured the allowance in his favor of a claim against B.'s estate for the amount paid by him in part satisfaction of said judgment; this claim was assigned to the fifth class. Held, in a suit instituted by A. against B.'s administrator and C., for the purpose of having the allowance of said judgment in C.'s favor set aside and the assets in the hands of the administrator applied to the payment of A.'s claim, that the instrument executed by C. operated a release of the judgment as against B.'s estate; that (the claims of A. and C. being the only allowed claims) C. was not entitled to have said judgment allowed as a claim against B.'s estate so as to protect the assets thereof (except the excepted property) from the payment of the claim of A.; that said instrument operated a like release of the judgment as to A., he being only a security.

Error to St. Louis Circuit Court.

This was an action by Charles S. Hempstead against John D. Wilson, administrator of the estate of Thomas Hempstead, deceased, and John Biddle. The petition set forth that Thomas Hempstead was an officer of the United States government; that plaintiff was the security upon his official bond; that on the 7th of June, 1823, judgment was rendered on said official bond against said Thomas as principal, and plaintiff as security, in the District Court of the United States for Missouri, for the sum of $13,497.27; that said Thomas Hempstead left the United States, and was last heard of in Spain in the year 1827; that plaintiff was compelled by executions to pay money upon said judgment at various times; that the defendant Biddle obtained the control of said judgment with power to release the same; that said Thomas left one child only, a daughter; that said daughter, being the sole heir of said Thomas, in 1845 or 1846 brought suits against said defendant Biddle for the recovery of certain property in the possession of said Biddle, which she claimed as descending to her from her father, the said Thomas; that as a part consideration for the withdrawal of said suits the said Biddle released the said judgment in favor of the United States, and of which he had control, so that the same should no longer be a charge upon the estate of the said Thomas; that though said release was executed by the said Biddle, and was in the hands of the agent of the said sole heir of said Thomas Hempstead, by a fraudulent contrivance between the said Biddle and the said heir the said release was not entered of record, but the judgment was fraudulently allowed to stand unsatisfied for the purpose of defrauding plaintiff, and compelling him to pay the same, notwithstanding it had been released; that in the year 1848 the defendant Wilson married the said heir of said Thomas, Cornelia V. Hempstead; that in June, 1850, letters of administration were granted by the Probate Court of St. Louis county upon the estate of Thomas Hempstead to said Wilson; that in March, 1851, by the connivance of the said Wilson, the said judgment was revived in favor of the United States, to the use of said Biddle, the said Wilson well knowing that the same had been released; that the judgment so revived was presented in the Probate Court for allowance against the estate of said Thomas; that the Probate Court refused to allow the same; that an appeal was taken to the Circuit Court; that by the fraudulent practices and the connivance of the said Wilson and Biddle a decree was obtained in the Circuit Court that said judgment be allowed by the Probate Court, though the said Biddle did not intend that any thing should be paid by the said Wilson, administrator; that on the 15th of June, 1852, said judgment, amounting to nearly $40,000, was allowed by the Probate Court, and placed in the fourth class of claims allowed against the said estate; that at the March term, 1853, of said Probate Court, a claim was allowed in favor of plaintiff against the estate of said Thomas, amounting to $10,244.67, for moneys paid on the aforesaid judgment; that said claim was placed in the fifth class of claims; that no other claims than the aforesaid have been allowed against the said estate; that property to a large amount belonging to the estate of said Thomas Hempstead has come into the hands of said Wilson, as administrator; that under the fraudulent pretense of paying said judgment allowed in favor of said Biddle, Wilson obtained an order of the Probate Court for the sale of property belonging to the estate of said Thomas; that at the December term of said court he sold property, and received $7,630, as appears by his report to the court; that at the December term, 1854, he sold other property, said Biddle becoming the purchaser, at a price of $3,650; that said Biddle and Wilson, having received notice that plaintiff intended to move the court to have the proceeds of said sale applied to his claim, fraudulently combined to suppress said sale, and no report was made of it to the Probate Court; that at the September term, 1855, of the Probate Court, the said administrator, Wilson, sold property amounting to $957, as appears by his report; that nothing has been paid upon said judgment in favor of said Biddle; that it was not intended by Wilson and Biddle that any thing should be paid upon it; that said sales were not made for the purpose of paying said judgment, or any debt of the estate of said Thomas Hempstead, but were made for the purpose of defrauding plaintiff of his just claim; that said judgment, by a fraudulent combination between Wilson and Biddle, is held as a cover for the assets of the said estate, and to prevent plaintiff from obtaining satisfaction of his just claim; that said judgment is more than sufficient to cover all the assets of the estate; that by the corrupt and fraudulent practices of the defendants, plaintiff is defrauded of his just debt against said estate; that the Probate Court refuses to entertain jurisdiction of this cause, to set aside the allowance of said judgment and grant relief to plaintiff. “The plaintiff therefore prays this court to take cognizance of this case, to set aside the allowance of said judgment in favor of said Biddle against the said estate, to cause the assets of said estate to be equitably applied to the payment of plaintiff's claim, and for such other and further relief,” etc.

Defendants answered separately, denying any release of the judgment mentioned in the petition, and denying the fraud alleged.

At the trial by the court without a jury, the plaintiff offered in evidence the following instrument in writing: “I, John Biddle, of Detroit,...