Horine v. Horine

• Decision Date: 31 July 1848
• Citation: 11 Mo. 649
• Parties: HORINE v. HORINE & FUNK.
• Court: Missouri Supreme Court

11 Mo. 649

HORINE

v.HORINE & FUNK.

Supreme Court of Missouri.

July Term, 1848.

APPEAL FROM JEFFERSON CIRCUIT COURT.

COLE, for Appellant.

1. The case made by the complainant's bill was exclusively cognizable in the County Court, and consent of parties could not confer jurisdiction where the law has expressly denied it. 8 Mo. R. 169, Miller v. Woodward. 2. The Circuit Court erred in receiving the testimony of Henry P. Horine, an interested witness. The court also erred in the admission of the release to Henry P. Horine, to render him competent. 3. The decree is erroneous. It is rendered against Matthias T. Horine, de bonis propriis, and not as administrator of Michael Horine. 4. There is no evidence to show that any assets of the estate of Michael Horine came to the hands of defendant as administrator. Bac. Abr. title Executors & Administrators, letter D. 5. If there were assets that came to the hands of the administrator, yet the court erred in not directing an account to be taken and an allowance to be made of all just credits to the administrator. Those who seek equity must do equity. 6. Upon principle and fact, this decree is unjust, and should be reversed. The heirs of Michael Horine, by their intermeddling with the estate of their ancestor, both in Missouri and Kentucky, without authority of law, became executors de son tort, and would be responsible to the lawful administrator for the estate--but are endeavoring, in this action, to take advantage of their own wrong and make an innocent person responsible for a loss which was occasioned by their intermeddling. 7. The acts of Henry P. Horine--money received by him, &c., under the authority of the heirs of Michael Horine, deceased--are obligatory upon said heirs, and change the character of the money received from being assets of Michael Horine (there being no creditors) to a matter of contract as between an agent and his principal, and the complainants are estopped by their own acts from proceeding in equity to enforce this demand, which manifestly has no connection with the estate of decedent, as shown by their own witness. 8. The court erred in not granting a new hearing, for the reasons alleged.

FRISSELL, for Appellees.

1. There is no error of which the appellant can rightfully complain. The decree is for the right party and more moderate in its amount than he could reasonably expect from the circumstances with which he has surrounded himself. 2. All persons are made parties that are required by law to be made parties, and sufficient to enable the court to do complete justice. Story's Eq. Pl. 88, 89, 90, note 1; 16 Vesey, 325-6-7-8; 2 Paige, 19, 20. 3. As the court can do complete justice in the case, with the parties before it, an objection for the want of parties, comes too late at the hearing. The defendant should have demurred. The defect, if any, is apparent upon the face of the bill. Story's Eq. Pl. 202, 414, 415; 2 Johns. Ch. R. 247. 4. The rule that all parties interested must be technical parties, is a rule adopted for convenience merely, and is dispensed with when it becomes extremely difficult or inconvenient. 1 Johns. Ch. R. 349-50, 438-9; 2 Mason's C. C. R. 193-4-5; 2 Paige, 19, 20. 5. That the practice to permit one or more of a considerable number to sue in behalf of themselves and others standing in the same relation, has been adopted for the purpose of saving expense. Hallet v. Hallet, 2 Paige, 19, 20. 6. The court had jurisdiction for the reason that no assets were admitted by the defendant below, and the complainants were compelled to seek a discovery of assets. When a party is compelled to resort to a court of equity for relief, the court will settle the whole subject matter of the suit. 7. The appellant has no right to complain of the decree as excessive, for the reason that, as administrator, it was his duty to settle annually and loan out the money at the best interest he could obtain, or he can retain the money in his own hands by leave of the court. He should therefore pay as high interest as the ordinary rate of interest, which was ten per cent. per annum. He cannot complain of eight per cent. compound interest, which is two per cent. less than the current rate. 8. Matthias T. Horine was chargeable with the sum of $450, paid to him in 1835, if we are to believe his statements in his own letters. Nor is there any proof to the contrary, unless a witness can prove a negative. The witness states Matthias did not have the horse in his possession, nor did he receive, to his knowledge, any of the proceeds. The words “to his knowledge” are equivocal, and should be construed to mean that he did not know that Matthias had the horse in his possession, &c.--for he certainly could not know these things unless he had attended upon Matthias as his shadow. 9. The above points cover all that was expressly decided by the court below, and this court will not notice other matters (not decided), especially when the decree does complete justice.

SCOTT, J.

This was a bill in chancery, filed by the appellees, who were complainants below, in their own right and also as guardians for some infant complainants, and also in behalf of others, against the appellant, who was the defendant. The bill states that the complainants and those for whom and in whose behalf they sue, were the descendants, or had intermarried with the descendants, of Michael Horine, deceased, who died many years before, in St. Louis county, possessed of considerable real and personal estate in the State of Missouri, all of which was duly administered and divided among the heirs of the said Michael Horine. That part of the estate of the said Horine was in Kentucky. That Matthias T. Horine, the defendant, took out letters of administration in the county of Jefferson, in this State, some years ago, for the purpose of collecting that portion of the estate of the said Michael that was in Kentucky. That, as such administrator, the said Matthias received, in the year 1835, the sum of $450 from Henry P. Horine of Kentucky, who was indebted to the estate of the said Michael Horine. Four hundred dollars of this sum was paid in a stable horse and the accounts for his services for two years, which horse had been sent to Jefferson county in this State, where he made his seasons; the balance of the said sum was paid in cash. The bill prayed for a discovery, and that the defendant might account for the sums received by him.

Horine, in his answer, admits that he took letters of administration on the estate of M. Horine, deceased, with the hope of getting some effects belonging to his estate. That after diligent search, he found none, but incurred a considerable expense, which has not been reimbursed. In relation to the horse and the fifty dollars, of which mention is made in the complainants' bill, he states, that about seven years ago, one Wilson brought a stud-horse from Kentucky to Bryant's, near Herculaneum, in Jefferson county, and left the horse at one Bryant's, who kept the horse as a stallion. That, from circumstances, believing the horse belonged to Henry P. Horine of Kentucky, who was a debtor of the estate of Michael Horine, in order to obtain satisfaction of the said indebtedness, he caused an attachment to be levied on him, but subsequently, being convinced...