Mayberry v. McClurg

• Decision Date: 31 January 1873
• Parties: WM. J. MAYBERRY, et al., Appellant, v. JOS. W. MCCLURG, et al., Respondent.
• Court: Missouri Supreme Court

51 Mo. 256

WM. J. MAYBERRY, et al., Appellant,

v.JOS. W. MCCLURG, et al., Respondent.

Supreme Court of Missouri.

January Term, 1873.

Appeal from Hickory Circuit Court.

F. P. Wright, for Appellant.

The demands which can be legally presented for allowance, under the statutory notice to the adminstrator, arise on contract alone, either express or implied, or upon a judgment obtained for the same. And for trespasses to property the damage must be first ascertained.

The reading of the statute implies this construction:--

1st. Any person may exhibit his demand against the estate, by serving on the executor or administrator a notice in writing stating the amount and nature of the claim, with a copy of the instrument of writing or account on which the claim is founded. An account, as expressed in the statute, implies a dealing between parties. There can be no account unless there is a liability under an express or implied contract. It implies that one is responsible to another for monies or other things, either on the score of contract or some fiduciaryrelation of a public or private nature, created by law or otherwise. (1 Metc., 217; 1 Bouv. Law, Dic., p. 53.) The idea that one can charge another in an account, for libel, slander, trespass, and the like, finds no sanction in the law. 2d. No demand can be allowed against an estate unless the claimant first makes oath and files his affidavit, “that he has given credit to the estate for all payments and offsets.” There can be no set-off in trespass. (Johnson vs. Jones, 16 Mo., 494; Moore vs. Otis, 18 Mo., 121; Ib. 158; 19 Mo., 125.

The statute makes ample provisions for establishing de mands against wrong doers, by first obtaining a judgment and exhibiting such judgment for allowance. (W. S. 102, § 8; R. C. 1855, 155, § 8.) The case of Moore, Exr., vs. Brown, Adm'r of Grey, 14 Mo., 165, so much relied on, has no application to this case.

In that case the decedent, by converting the slave, had made it a money demand, and could be well charged with the value of the slave.

McAffee, Phelps and Young, for Respondents.

I. The petition is clearly bad. It shows upon its face a defect of parties defendant. It is alleged in the petition that Wilson, the administrator of the estate of Mayberry, deceased, assisted Deft McClurg in procuring the alleged fraudulent allowance order of sale, and sale of the real estate. He is therefore a necessary party defendant.

II. The pleadings do not connect the defendants Johnson and Torbech with the alleged fraud, nor in any way implicate them, or show that they have any interest whatever in the real estate alleged to have been fraudulently sold, and bought in by Defendant McClurg. Hence they are improperly joined as parties defendant.

III. The County Court of Hickory County at the date of said allowance, had Probate Jurisdiction, and as such had jurisdiction of the demand presented by plaintiff for allowance, against the estate of John Mayberry, deceased. (R. C., 1855, Art. 2, § 26; Id. Art. 4, § 9.)EWING, Judge, delivered the opinion of the Court.

This is a proceeding in equity to set aside an order of allowance, made by the County Court of Hickory County, in 1870, in favor of J. W. McClurg and Marshall W. Johnson, against the estate of John Mayberry, deceased, and to set aside certain orders and sale of real estate, and the deeds duly executed to McClurg under said sales. The petition charges in substance, that the said J. W. McClurg and Marshall W. Johnson combining and confederaing with one, Jas. R. Wilson, the administrator of Mayberry's estate, to cheat and defraud plaintiffs, the heirs of said deceased, on or about the 11th day of February, 1865, appeared before the County Court of said County, and falsely pretending that said Mayberry in his life-time had been guilty of a trespass against the property of said defendants, presented a demand against said estate on account of such alleged trespass, for the sum of $10,925; and falsely pretended that the same should be allowed against said estate, when in truth, and in fact, the said defendants neither as a firm or otherwise had any demand against said estate, nor any account whatever, and that said administrator, for the fraudulent purpose of aiding said defendants in having their pretended demand fraudulently allowed, and for the purpose of aiding said McClurg to buy said land, and fraudulently to deprive plaintiff thereof, appeared and fraudulently waived notice of the same, and failed to make any defense thereto, being fraudulently persuaded by defendants so to do, well knowing that they had no legal demand against said estate, and that the same could have been successfully defended. It is further averred that said defendants procured by fraud the said pretended demand to be allowed against said estate for said sum. The petition then proceeds to all lege the fraudulent procurement by said Wilson and McClurg, of sundry orders of sale by the County Court, of said reaestate, to pay said allowance, and the sale of the same to said McClurg.

The cause is here on a demurrer to said petition.

1. The petition alleges a state of facts, which if proved would unquestionably entitle plaintiffs to the relief sought.

It contains a narrative of the facts of the plaintiff's case, and of the wrongs and grievances of which they complain with as much minuteness as is necessary.

A judgment collusively or fraudulently procured, should be set aside at the instance of the party against whom it was rendered. (Miles vs. Jones, 28 Mo., 87; Harris vs. Terrill's Executor, 38 Mo., 421, and authorities cited.)

2. Wilson the Administrator, is obviously not a necessary party to the suit. He is not interested in the subject of the suit, nor could the plaintiffs have any decree against him. And as he is not a party to the interest involved, he need not therefore, have been made a party to the suit. McClurg and Johnson, as the bill shows, are the only persons having any interest adverse to the plaintiff or that could be affected by the decree. It may be here observed, that there is nothing in the petition connecting the defendant Torbech, with the alleged fraudulent transaction or showing any liability on his part.

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