Henderson's Adm'r v. Henderson

• Decision Date: 31 July 1855
• Citation: 21 Mo. 379
• Parties: HENDERSON'S ADMINISTRATOR, Respondent, v. HENDERSON, Appellant.
• Court: Missouri Supreme Court

21 Mo. 379

HENDERSON'S ADMINISTRATOR, Respondent,

v.HENDERSON, Appellant.

Supreme Court of Missouri.

July Term, 1855.

1. A judgment for the plaintiff will not be reversed for an insufficient finding of the facts, if the matters set up in the answer constitute no defence.

2. In a suit by an administrator upon a note of his intestate, it is no defence that the county court had allowed a former administrator, upon settlement, credit for the amount of the note.

3. An allegation in the answer that the intestate, before his death, “gave the note to the defendant, and made arrangements to have it delivered up to him, which was neglected to be done,” is no defence; these facts constituting neither a donatio causa mortis, nor a valid gift or equitable release.

Appeal from Platte Circuit Court.

Action on a note by John Henderson's administrator de bonis non against Joseph Henderson. The answer set up these defences: 1st, That John Henderson, before his death, “gave the note to the defendant, and made arrangements to have it delivered up to him, which was neglected to be done;” 2d, That the county court of Platte county, having probate jurisdiction, “released the executor of the estate of John Henderson, and by its judgment determined that the defendant was not liable for the payment of the note;” and, 3d, The statute of limitations. But this last defence was abandoned.

The Circuit Court, upon a trial without a jury, found the facts, but the finding was silent as to the matters relied upon in the answer. Judgment was rendered for the plaintiff, and the defendant appealed.

Hayden, Morrow & Davis, for appellant.

H. M. Vories, for respondent.

LEONARD, Judge, delivered the opinion of the court.

1. There is no error in this record except in the finding of the facts, which is clearly insufficient. Indeed, there is no finding as to the matters set up in the answer in bar of the plaintiff's recovery upon the note, which are the only facts put in issue by the pleadings, and, therefore, if these matters constitute a good defence, the judgment must be reversed; but if they would not avail the defendant, assuming them to be true, the defective finding cannot prejudice him, and is no ground for a reversal. We proceed to examine the several defences relied upon, in connection with the defendant's proof.

2. According to his own showing, he is not protected by the statute of limitations, and it is very clear that the order of the county court, referred to in the answer allowing the former administrator credit in his administration account for the amount of the note and interest, is no adjudication of the rights of the respective parties to it, so as to conclude either debtor or creditor. It was made in an ex parte proceeding by the former administrator for the purpose of obtaining this credit against the corresponding charge in his inventory, and, in a proceeding between the payor and payee, instituted for the purpose of determining their rights in reference to the note, and what was then adjudged, most clearly does not conclude the present parties.

3. The real question, however, intended to be litigated in this record, we suppose, is whether what passed on the part of the father amounts in equity to a valid gift of the note, or, which is the same thing, to an equitable release of the debt.

The transaction was not pleaded as a donatio causa mortis, and the defendant's own proof shows that it was not a gift of that character. It was intended, if a gift at all, as a present, absolute gift, not as a testamentary disposition--a conditional transfer, to take effect when, and in case the donee died, which distinguishes the latter from the former species of gift, and is essential to a death-bed donation. Besides, there was no delivery, and without delivery there can be no such gift; and we do not think there is any ground for the opinion that it amounted, in equity, to an extinguishment of the debt, either as a valid, voluntary assignment of it, or as an equitable release. We refer now, for a moment, to the progress and present state of the English law upon the subject of disposing of choses in action, contingent rights and possibilities. By the common law, these interests could not be granted to a stranger; but, as Lord Cowper remarks, in Thomas v. Freeman (2 Vern. Rep. 563), “the law was not so unreasonable as not to allow them to be released to the debtor or the party in possession.” This rule, however, never found favor in the court of chancery, and a device was resorted to there in order to get rid of it. The assignment being void at law, as a present transfer, was entertained in equity as an agreement to transfer, which the court would enforce (Wright v. Wright, 1 Ves., Sen., 411), and the maxim of the court, “what ought to be done is to be considered as done,” being applied to the transaction, the beneficial ownership of the debt was, in contemplation of a court of equity, vested by the assignment in the assignee, and both debtor and creditor were, to some extent, converted into trustees for him, the debtor being bound, after notice to pay to him alone, and the creditor to allow him the use of his name in the collection of the debt. Equity, however, would not compel the execution of an agreement, unless it was founded upon a valuable consideration, and so voluntary assignments were not aided in chancery, but a different expedient has been resorted to in reference to them. Although equity will not lend its aid to enforce a voluntary agreement, yet, when there is a trust actually created--a constituted trust--the court will enforce its execution against the trustee, in favor of a cestui que trust, who is a mere volunteer. In Ellison v. Ellison (6 Ves. Rep. 661), Lord Eldon thus states the principle: “I take the distinction to be, that, if you want the assistance of the court to constitute you cestui que trust, and the instrument is voluntary, you shall not have that assistance for the purpose of constituting you cestui que trust, as upon a covenant to transfer stock, etc., if it rests in covenant, and is purely voluntary, this court will not execute that voluntary covenant; but, if the party has completely transferred stock, though it is voluntary, yet, the legal conveyance being effectually made, the equitable interest will be enforced by this court.” The early cases, in which this principle is recognized and acted upon, were all cases where the legal interest in the property was transferred in pursuance of an antecedent agreement, or direction, declaring the trusts, or as part of the transaction creating the trust (Vice-Chan. Wigram, in Meek v. Kettlewell, 23 Eng. Chan. Rep. 470), and, of course, they...