Julian v. Calkins

• Decision Date: 31 October 1884
• Citation: 85 Mo. 202
• Parties: JULIAN, Public Administrator, v. CALKINS et al., Appellants.
• Court: Missouri Supreme Court

85 Mo. 202

JULIAN, Public Administrator,

v.CALKINS et al., Appellants.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Greene Probate and Common Pleas Court.--HON. T. H. B. LAWRENCE, Judge.

AFFIRMED.

Jerre Cravens and F. H. Heffernan for appellants.

(1) The court below decided the case upon the theory that although Daniel Ellis acted in the purchase of the note upon the most reliable information and in the best of faith, yet, because he was the agent of the vendor he could not buy of the latter a doubtful claim, even though both parties knew all the facts relating to the same. This is not the law. Grayson v. Weddle, 63 Mo. 524; Boehlest v. McBride, 48 Mo. 505; Kennedy v. Keaping, 34 Mo. 25; Mead v. McLauglin, 42 Mo. 198; Woodlee v. Burch, 43 Mo. 201. (2) The court erred in permitting Candace Calkins to testify in the cause. The cause of action in issue and on trial was the validity of the assignment from Walkley, or his mother-in-law, to Wirt W. Ellis, through the intervention of Daniel Ellis, and Wirt W. Ellis being dead, the other party, Candace Calkins, could not testify in her own favor.

W. C. Price for respondent.

(1) There is no such proceeding as this in the probate court, that court having no chancery jurisdiction, but statutory powers only. Friedland v. Wilson, 18 Mo. 380; Presbyterian Church v. McElhaney, 61 Mo. 540. (2) The proceeding is otherwise a nullity. The administrator is bound to pay respondent, being fully protected by the assignment of the order of allowance and assignment. Sections 2762 and 2763, chapter 42, Revised Statutes, 464; Tutt v. Cowzner, 50 Mo. 152; Powersv. Blakey, 16 Mo. 437. (3) No appeal lies directly from the probate court of Greene county to this court; and this cause must be dismissed for that reason. Section 29, Revised Statutes, chapter 1, article 14, p. 43. (4) The demand was equitably respondent's before assignment on the record by Walkley to her; and whilst it is true, perhaps, if without notice, W. W. Ellis had taken a legal transfer from Walkley, he would have held the legal right to payment as against Calkins, such is not the effect of the blank endorsement of instrument, especially under the circumstances of this case. Daniel Ellis, who negotiated the transaction for his son, colored Wirt W. Ellis' right.

DEARMOND, C.

On September 11, 1870, one H. J. Lindenbower executed to Candace Calkins his negotiable promissory note for $1,000, payable in three months with ten per cent. interest. The note being assigned to S. T. Walkley was allowed by the probate and common pleas court of Greene county, against Lindenbower's estate, and the following minute of such allowance was endorsed upon it: “Allowed for $1,041.70 in the fifth class of demands, this twenty-third day of February, 1871, E. D. Ott, clerk.”

Credits were afterwards entered on the back of the note, five hundred dollars, in April, 1871, and two hundred and fifty dollars, in August, 1872, and $31.28 in November, 1874. In July or August, 1875, for one hundred and fifty dollars, paid by Wirt W. Ellis to his wife, Walkley endorsed on the note “pay to the order of_______. S. T. Walkley,” and it was sent by mail to Ellis. In August, 1875, after this endorsement of the note Walkley executed a power of attorney to one Joseph Titus, “giving full power to my said attorney to assign said judgment for the benefit of Candace Calkins, who in reality is the owner thereof, as it was only assigned to me for collection.” Titus, as attorney in fact, in November, 1875, assigned the judgment of allowance on the margin of the record to said Calkins, the assignment being attested by the clerk of said court. In 1879, Wirt W. Ellis died testate, and Daniel Ellis and John P Ellis qualified as his executors. In July, 1881, S. H. Julian having in charge the Lindenbower estate, and having been ordered to pay fifth class demands in full, filed his petition in said court, calling attention to the rival claims of said Calkins, and Ellis and Ellis, executors, and praying the court that said parties be required to interplead, and that the court direct him as to the payment of the said allowance. The said parties came into court and set up their respective claims.

Upon the hearing the court found “that the claim in controversy, although allowed and classified in the name of S. T. Walkley in the fifth class of demands, was the property of the said Candace Calkins. That the said claim in the fall of 1874, was placed in the hands of Daniel Ellis, the father of Wirt W. Ellis, deceased, for collection, with instructions to apply the proceeds when collected to the payment of a deed of trust in favor of Joseph Titus and against said Candace Calkins. That afterwards, to-wit: in July or August, 1875, said Wirt W. Ellis purchased said claim from said Walkley through his father, and while the same was in his (Daniel Ellis') hands for collection with knowledge of the ownership of Mrs. Calkins, for which he paid to Mrs. S. T. Walkley, the sum of one hundred and fifty dollars.” The evidence further shows that Daniel Ellis and Mrs. Walkley negotiated by letter the sale and purchase of the note, Daniel representing Wirt W. That Mrs. Calkins was in Kansas, Mrs. Walkley, in North Missouri, Mr. Walkley, in Illinois, and Daniel and Wirt W. Ellis, father and son, living together in Springfield at the time. That Mrs. Calkins knew nothing of the transaction until after the transfer had been made, and on learning of it was very much dissatisfied; that Walkley had nothing to do with it except to endorse the note in blank at the request of his wife and Daniel Ellis. That Mrs. Walkley and Mrs. Calkins, daughter and mother, used the one hundred and fifty dollars. That just after Mrs. Calkins came from Kansas and joined her daughter in North Missouri, a fresh correspondence began between Mrs. Walkley at one end of the line, and Daniel and Wirt Ellis at the other end, in which Mrs. Walkley charged that the Ellises had swindled her mother, there...