Hempstead v. Thomas Hempstead's Adm'r

• Decision Date: 31 March 1862
• Citation: 32 Mo. 134
• Parties: CHARLES S. HEMPSTEAD, Respondent, v. THOMAS HEMPSTEAD'S ADMINISTRATOR et al., Appellants.
• Court: Missouri Supreme Court

32 Mo. 134

CHARLES S. HEMPSTEAD, Respondent,

v.THOMAS HEMPSTEAD'S ADMINISTRATOR et al., Appellants.

Supreme Court of Missouri.

March Term, 1862.

Appeal from St. Louis Circuit Court.

The finding of the court below is set out in the opinion. The deeds referred to, or covenants of Biddle with the heir of Thomas Hempstead, and the covenant with the plaintiff, were as follows:

“I, John Biddle, of Detroit, in the state of Michigan, hereby covenant and agree with Cornelia Hempstead, widow, and John D. Wilson and Cornelia V., his wife, (which Cornelia V. is child and sole heir of said Thomas Hempstead,) in manner following, that is to say: Whereas, I am the owner and assignee of a certain judgment, rendered in the United States District Court for Missouri, on the 7th day of June, in the year 1823, for the sum of $13,497.27, in favor of the United States, against Thomas and Charles S. Hempstead; and, whereas, I have compromised a certain suit in chancery, this day, wherein said John D. Wilson and wife and Charles Gibson are complainants, and myself and John O'Fallon are defendants, and they have quit-claimed all their right in the land in controversy in that suit, and agreed to dismiss that suit and a part of the consideration for such quit-claim and dismissal of said suit and release of their cause of action therein, is the release of the estate of said Thomas Hempstead from said judgment as hereinafter specified. Now, therefore, I hereby, for myself, heirs, representatives and assigns, agree and covenant that said judgment shall never be used or enforced in any manner against the heirs or administrators of said Thomas Hempstead, unless for the purpose of affecting the two pieces of land of forty arpens and of five arpens hereinafter mentioned, nor against any property belonging to his estate, or to his heirs, as derived from him at any time, except, however, the tract * * * against which said two pieces of land, I reserve the right of using said judgment as I may see proper, and also of using the name of the heirs and representatives of Thomas Hempstead, deceased, for the purpose of selling, or otherwise affecting the same lands, but always at the proper cost of myself or my representatives. And I also have the right of using said judgment against Charles S. Hempstead and his property; but, with the exception of the whole of the said forty arpens, and of the said five arpens, I am not to use or enforce said judgment, so far as the same can be made to affect the heirs, executors or administrators of the said Thomas Hempstead, or any property owned by them, or any of them, as such heirs, or executors, or administrators.

In testimony whereof, I have hereto set my hand and seal, this 7th day of December, 1849.

JOHN BIDDLE, [L. S.]”

“This agreement, made between John Biddle, of Detroit, Michigan, of one part, and William Hempstead, of Galena, Illinois, of the other part, witnesseth, that the said William Hempstead agrees to pay said Biddle four thousand dollars, and in consideration of such payment the said Biddle covenants with the said William Hempstead, his executors, administrators and assigns, that a certain judgment rendered in the United States District Court for Missouri, on the 7th day of June, in the year 1823, in favor of the United States against Thomas Hempstead and Charles S. Hempstead, for the sum of thirteen thousand four hundred and ninety seven dollars twenty-seven cents, shall not be enforced against Charles S. Hempstead, or his representatives, or property, except so far as * * * which excepted parcels of ground said Biddle may use said judgment, and proceed in any manner deemed advisable, in the name of Charles S. Hempstead as one of the defendants, or otherwise. The judgment aforesaid is now owned and controlled by the said John Biddle.

In testimony whereof, the said parties have hereto set their hands and seals, this 22d day of December, 1849, to duplicates hereof.

JOHN BIDDLE, [L. S.]

WILLIAM HEMPSTEAD, [L. S.]”

Glover & Shepley, for appellants.

I. The plaintiff having failed to plead the release to the suit to revive the original judgment, is estopped from now setting up what should have been a matter of defence in that suit. (10 Mo. 382.)

II. After the revival of the judgment, the Probate Court was bound to allow it. (Wood et al. v. Ellis, 12 Mo. 616.)

III. There is no fraud shown of any kind. The deed was not a release of the judgment, nor was it so intended. The plaintiff knew of the arrangement, and made one of a similar character for his own protection. He has never paid the judgment, and is not injured by the use made of it.

Jones & Sherman, with J. E. Munford, for respondents.

I. The instrument of writing signed by Biddle was a release of the judgment in favor of the United States. (27 Mo. 188.)

II. The judgment having been released, the plaintiff was entitled to be paid his debt.

BATES, Judge, delivered the opinion of the court.

This case was before this court in 1858, and is reported in 27 Mo. 188. It was then remanded to the Circuit Court, where the plaintiff filed a supplemental petition stating that Wilson had made a final settlement of the estate of Thomas Hempstead, showing a balance in his hands, which had been ordered to be paid to creditors whose claims were in the fourth class, (that is, to John Biddle,) and charging that that settlement was fraudulent as to plaintiff.

The defendants answered the supplemental petition, denying fraud, &c.

The case was then tried before the Judge of the Circuit Court, who gave a finding of facts and judgment as follows:

“Now at this day come the parties by their respective attorneys, and, waiving a jury, submit this cause to the court upon the pleadings and proof, and the court having duly heard and considered the same, doth find --

1. That on the seventh day of June, eighteen hundred and twenty-three, a judgment was rendered in favor of the United States against Thomas Hempstead and Charles S. Hempstead, the complainant herein, for the sum of thirteen thousand four hundred and ninety-seven dollars and twenty-seven cents, on the official bond of said Thomas Hempstead, wherein said Thomas Hempstead was principal, and said Charles S. Hempstead was security.

2. That said John Biddle obtained the control and ownership of said judgment, with power to release the same.

3. That said Thomas Hempstead died and left one child only, a daughter, his sole heir, Cornelia V. Hempstead.

4. That said John Biddle, on the 7th day of December, 1849, for good and sufficient considerations, one of which was the withdrawal and dismissal of certain suits that had been instituted by the heir of Thomas Hempstead against the said Biddle and others, and the conveyance by the heir of Thomas Hempstead to Biddle of two certain tracts of land, the subject of said suit, released by instrument of writing the heirs, executors and administrators of Thomas Hempstead from said judgment, except so far as might be necessary to use it for the protection of the title to the land which Biddle obtained by said conveyance from said heir.

5. That said release was never entered of record, but was kept by the agent of said John D. Wilson; that said John D. Wilson was advised by counsel, and believed, that the paper called release was no release at all, and acted upon such hypothesis.

6. That said judgment was kept afoot in fraud of the complainant in this cause.

7. That in the year 1848, said defendant, John D. Wilson, married the said Cornelia V. Hempstead, the said sole heir of Thomas Hempstead.

8. That, in June, 1850, letters of administration were granted to defendant Wilson, by the Probate Court in and for the county of St. Louis, State of Missouri, upon the estate of Thomas Hempstead.

9. That in the month of March, 1851, the said judgment against said Thomas and Charles Hempstead was revived in favor of the United States, to the use of said Biddle, fraudulently.

10. That said judgment so revived was presented in the Probate Court for allowance by the said Biddle; the same was fraudulently procured to be allowed, and was allowed on the 15th day of June, 1852, to the amount of $34,772.34, and placed in the fourth class of claims allowed against the estate of Thomas Hempstead, in fraud of the plaintiff's rights.

11. That...