McGinnis v. Loring

• Decision Date: 16 January 1895
• Citation: 28 S.W. 750,126 Mo. 404
• Parties: McGinnis, Administrator, Appellant, v. Loring, Administrator
• Court: Missouri Supreme Court

28 S.W. 750

126 Mo. 404

McGinnis, Administrator, Appellant, v. Loring, Administrator

Supreme Court of Missouri, First Division

January 16, 1895

Motion for rehearing denied on January 16, 1895.

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Affirmed.

""M. Kinealy, T. J. Rowe, R. S. MacDonald and ""Jas. R Kinealy for appellant.

(1) The probate court should have classified this judgment. ""Wernse v. McPike, 100 Mo. 476, followed in ""Stephens v. Bernays, 24 S.W. 47 (as to the principle involved). And especially as it had ample power to do justice, and in doing so to call in the aid of equitable rules and principles. 1 Woerner's Am. Law of Admin., 340 ""Titterington v. Hooker, 58 Mo. 593. And, of course, on appeal, the circuit court had the same duty and powers. (2) The court erred in admitting oral testimony of the contents of the letters of the Clarks to witness Babcock. 1 Rice on Evid., 147. (3) The court erred in admitting in evidence the assignment of the Clark judgment made by Martha Moody and Oscar K. Lyle to Cassimir G. Loring. ""First. Because the ""situs of the debt is in St. Louis. ""Bank v. Wickham, 23 Mo.App. 663; ""Chapman v. Fish, 6 Hill 554. ""Second. Because the foreign administrator can not assign debts, the ""situs of which is here, and especially after letters of administration have been granted here. ""In re partnership of Ames, 52 Mo. 290; ""Reynolds v. McMullen, 55 Mich. 568; 3 Am. and Eng. Encyclopedia of Law, 647, 655""h; Wyman v. Halstead, 109 U.S. 654. (4) The evidence shows that Mrs. Lyle directed her agent to purchase the judgment and bond claims, and that he had no other power; it also shows that the Clarks sold the judgment and the bond claims, and, themselves, participated in no other transaction. On this matter of a purchase, and on no other, did the minds of the principals meet, and this, then, was the act accomplished. And the evidence shows that this was the intention and act of Mrs. Lyle's agent. (5) Evidence was introduced, attempting to show that Mrs. Lyle was given property by Alex. L. Lyle, on condition that she should pay this judgment, and it was argued that she was bound to execute this trust, and it will be assumed that she executed it. This is error. The trust, if any, would be a volunteer trust as to Cozzens, and there would be no obligation on Mrs. Lyle to enforce it for Cozzens' benefit. ""Lane v. Ewing, 31 Mo. 82; ""Henderson's Adm'r v. Henderson, 21 Mo. 381; ""Bunn v. Winthrop, 1 Sandf. Ch. 262; ""Ellison v. Ellison, 6 Ves. 662. (6) But, even if Alex. L. Lyle were to be deemed as providing the money to pay this judgment, he would have had a right to take an assignment of it in the name of another, and use it to enforce the liability of Cozzens. ""Chandler v. Higgins, 109 Ill. 602. (7) And at this day the courts hold pretty generally, in the United States, that the surety who pays the judgment is subrogated to the creditor as to the judgment, to enforce payment of his liability from the cosurety. 2 Brandt on Suretyship [last Ed.], sec. 303, p. 439; secs. 309, 310, 311, pp. 450 ""et seq.; Baylies on Suretyship, p. 367, and cases cited; ""Cuyler v. Ensworth, 6 Paige, 32; ""Wright v. Co., 82 Pa. St. 80; ""Jackson v. Baker, 22 L. R. A. 448. (8) The defendant can not play fast and loose in this matter. He has introduced an assignment of the judgment by the New York administratrix of Moody to defeat this action, and as there is no other apparent ground for the action of the court on the instructions than the assignment, the defendant must be taken to rely on it as being the basis of the court's ruling. He is, therefore, estopped to deny that Moody owned the judgment at the time of Martha Moody's assignment, ""i. e., on December 8, 1890. ""Cross v. Terlington, 2 Murphy, 6; ""Watson v. Wace, 9 B. and C. 153; ""Brown v. Brown, 45 Mo. 414; ""Smith v. Patterson, 95 Mo. 525; ""Railroad v. Green, 68 Mo. 169; ""Wilcoxen v. Osborn, 77 Mo. 629; ""Fitzgerald v. Barker, 85 Mo. 13.

""C. A. Schnake and ""Jas. M. Loring for respondent.

(1) The plea of payment is a common law plea, and it was the duty of the administrator to interpose it to the classification of the judgment, and of the probate court to pass on it. 2 Woerner's Law of Admin., p. 826; ""Stephens v. Bernays, 24 S.W. 47. (2) Alex. L. Lyle could not take an assignment of the judgment in the name of another and use it to enforce the liability of Cozzens. (3) Courts will not, under the guise of subrogation, help one surety to collect from his cosurety more than his proportionate share of the loss. (4) An assignment to one of his own debt is an absurdity; it can not be done. ""Hull v. Sherwood, 59 Mo. 172; ""Riggs v. Goodrich, 74 Mo. 108; ""Babb v. Taylor, 56 Mo. 311.

OPINION

Black, P. J.

Plaintiff, as administrator of the estate of Horace Moody, presented to the probate court of the city of St. Louis a judgment for classification against the estate of William H. Cozzens. The probate court rejected the demand, and the plaintiff appealed. The circuit court gave a like judgment, and the plaintiff appealed to this court. The defense relied upon in both courts was this, that the judgment had been paid by persons acting in the interest of the estate of Alexander Lyle, he being one of the judgment debtors. The facts, which stand admitted or are proved beyond a doubt, are to the following effect:

William H. Cozzens, Alexander Lyle and two other persons were sureties on three bonds given by Isaac Fisher as curator of the estates of Edward Clark, Robert Clark, and Anna Clark, a separate bond being given for each ward. On the twenty-second of March, 1872, Edward Clark obtained judgment on the bond given for his benefit, against Fisher, Lyle and Cozzens for the sum of $ 2,497. Fisher then owed each of the other wards a like amount, but their claims were never reduced to judgment. Execution was issued on the judgment. While matters stood in this shape, Alexander Lyle, the only then solvent judgment debtor, caused his son, Oscar, to open negotiations with Mr. Babcock, looking to a settlement of the judgment and the claims of the other minors. Babcock was the attorney who obtained the judgment. Alexander Lyle died on the eighth day of May, 1874. A few days before his death he turned over to his wife some notes and also some stock in a corporation, and at the same time gave her directions to settle the claims of the Clarks. On the twenty-sixth of May, 1874, after the death of Alexander Lyle, Oscar Lyle gave Babcock $ 1,500 in full settlement of the judgment. In making this settlement, he acted as the agent of his mother and used money which she had borrowed for that purpose. There was at that time, and probably prior thereto, an understanding that the claims of Robert and Anna Clark should be settled on like terms. These two claims were settled by Oscar, acting again as the agent of his mother, on the twenty-ninth of September, 1874, at which time Robert and Anna assigned their causes of action to Oscar Lyle. At this last named date, Oscar took a written assignment of the judgment to himself. The consideration paid for this assignment was the $ 1,500 paid to Babcock four months before. In January, 1876, Oscar Lyle assigned the judgment to his father-in-law, Horace Moody. In 1892 the plaintiff, as the Missouri administrator of Moody's estate, presented the judgment for classification against the estate of Cozzens. Plaintiff seeks to have the judgment classed for the full amount thereof, and the accrued interest thereon. He seems to be acting for, and in the interest of, Mrs. Lyle and some other persons, whose interest in the matter is not clearly defined. Oscar Lyle appeared as a witness for the defendant.

The parties produced much other evidence. Some of it tends to show that Mrs. Lyle directed Oscar to procure an assignment of the judgment to her when he paid the $ 1,500 to Babcock, and that there was then an understanding that Babcock would communicate with his client and procure an assignment of the judgment. On the other hand, there is much evidence tending to show that Oscar Lyle paid the $ 1,500 in settlement and discharge of the judgment, and that the assignment of it to him was an afterthought.

It appears that Horace Moody died a resident of the state of New York, and his wife administered on his estate there. As such administratrix she executed a writing in 1890, professing to assign the judgment to Cassimir Loring. The defendant read this assignment in evidence, over the objection...