Hendrix v. Wright

• Decision Date: 31 July 1872
• Citation: 50 Mo. 311
• Parties: BENJAMIN F. HENDRIX, ADMINISTRATOR de bonis non OF THE ESTATE OF LITTLEBURY HENDRIX, Respondent, v. FOSTER P. WRIGHT AND GEORGE R. SMITH, Appellants.
• Court: Missouri Supreme Court

50 Mo. 311

BENJAMIN F. HENDRIX, ADMINISTRATOR de bonis non OF THE ESTATE OF LITTLEBURY HENDRIX, Respondent,

v.FOSTER P. WRIGHT AND GEORGE R. SMITH, Appellants.

Supreme Court of Missouri.

July Term, 1872.

Appeal from Pettis Circuit Court.

F. P. Wright, for appellants.

The judgment, so far as it is rendered in personam, is clearly void for want of jurisdiction, and can be regarded as a nullity in a collateral proceeding. (Enos v. Smith, 7 Sm. & M. 85; 8 Sm. & M. 505.)

Smith's knowledge of the judgment and its invalidity was confined to the execution, which was a general one, reciting a judgment rendered by a court of general jurisdiction, and Smith had the right to suppose the judgment was valid.

Money paid on a void judgment may be recovered back (Newdigate v. Davy, 1 Lord Raym. 742), and if the money had been paid over to the administrator, Smith could recover it back. But Smith is not seeking to recover back the money finally paid over. He is trying to keep it from being paid over while in transitu. Smith notified Wright not to pay it over to the administrator, and if he had done so he would have been liable to Smith. (Wallace v. Clingen, 9 Barr, Penn., 49; Langley v. Warner, 1 Sandf. 209; Edwards v. Hodding, 5 Taunt. 815.) The money being claimed by Smith, to whom, in equity at least, it clearly belonged, Wright, by paying it over after notice, would have rendered himself liable, even if he had been acting as attorney or agent for plaintiff. After notice he held the money as mere stakeholder, and was bound to see it applied to the proper party. (Burrough v. Skinner, 5 Burr. 2639; Sto. Agency, § § 300, 301; Garland v. Salem Bank, 9 Mass. 408-14.)

Hicks & Phillips, for respondent.

I. The relation of clerk and attorney, of principal and agent, subsisted between respondent and Wright; and Wright having received the money as such agent and attorney, cannot set up title thereto in another, or even call upon a party claiming the money to interplead for the same, and Wright's answer should have been stricken out. (2 Sto. Eq., § 816-17, 163-4; Crawshay v. Thornton, 7 Simon's Ch. 391; Marvin v. Ellwood, 11 Paige's Ch. 365, 370, 375.) Neither could Smith, by notifying Wright not to pay over the money to respondent, convert Wright into an implied trustee for his benefit. (Bank of U. S. v. Bank of Washington, 6 Pet. 819.)

II. The judgment and execution in Benton Circuit Court were not void. (Massey v. Scott, 49 Mo. 278.)

III. The possession of Wright, the agent and attorney, of the money in controversy, is in law deemed the possession of respondent. (Dixon v. Hamond, 2 B. & Ald. 312-13.) Atkinson v. Manks et al., 1 Cow. 691; Marvin v. Ellwood, 11 Paige, 376; 2 Sto. Eq. ch. 22, §§ 816-17.)

IV. The proceedings had in the Benton Circuit Court to quash the execution and set aside the sale, were nullities. The court had not jurisdiction over either plaintiff or defendant in the execution. They had no notice of such proceeding. Smith was neither party nor privy to the record.

V. Smith's demand is in the nature of one for money had and received, and although he averred in his plea that he bought under the impression that the judgment was one in personam, yet that fact was specifically controverted in the replication, and Smith offered not a word of proof in this distinct issue of fact; so it remains that Smith's mistake was one of law, and he can not recover for money so paid. The doctrine of caveat emptor applies with peculiar force in this case. (Boas v. Updegrove, 5 Barr, Penn., 516-19; Espy v. Allison, 9 Watts, 462; Mowatt v. Wright, 1 Wend. 355; Maguire v. Monks, 28 Mo. 196-7.)

WAGNER, Judge, delivered the opinion of the court.

From the pleadings the facts in this case are briefly these: The administrator of Littlebury Hendrix, deceased, placed in the hands of the defendant Wright, an attorney at law, two notes for collection against one Atkinson. The notes were given for the purchase of real estate in Benton county, and Atkinson was a non-resident. Wright commenced a proceeding in the Benton County Circuit Court specifically against the land to obtain a vendor's lien, and Atkinson was notified by publication. Upon proof of publication being made, judgment was taken specially, giving a lien on the real estate, and a general personal judgment was also given. A special execution was issued to the sheriff of Benton county, and the land was sold and bid in by Wright for the benefit of the estate, but not for a sufficient price to satisfy the execution. Afterwards, by the direction of Wright, a general execution was issued to the sheriff of Pettis county, and certain real estate lying in that county, and belonging to Atkinson, was sold by the sheriff and purchased by Smith for an amount which satisfied the balance of the execution. This money was paid over to Wright as attorney for plaintiff, but he did not deliver it to plaintiff; and subsequently Smith notified him not to pay the same, on the ground that the sale was void and that he claimed a return of the money. In pursuance of this notification, Wright kept the possession of the money, and this suit was instituted for its recovery.

Wright, in his answer, sets out in detail the facts, the substance of which is above stated, and alleges that he was mistaken in the law as to the validity of the general judgment, and further says that at a subsequent term of the Benton Circuit Court the execution issued to Pettis county was quashed and the sale to Smith set aside. He asks the court to determine who is entitled to the money, but says that, if it is due to ...