Metcalf v. Larned

• Decision Date: 31 March 1867
• Citation: 40 Mo. 572
• Parties: HORACE METCALF and NIMROD SNYDER, Respondents, v. CHARLES T. LARNED and PHILOMENA his wife et als., Appellants.
• Court: Missouri Supreme Court

40 Mo. 572

HORACE METCALF and NIMROD SNYDER, Respondents,

v.CHARLES T. LARNED and PHILOMENA his wife et als., Appellants.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Circuit Court.

C. Gibson, for appellants.

Does the plaintiff, who is but the representative of the administrator, enjoy any greater advantages than the administrator himself? The administrator did not claim the proceeds of the sale in partition. His sale of the land, if valid for any purpose, passed the title to the land. It certainly merged the debt and all pecuniary claim of Mrs. Tyler. Her conveyance to the plaintiff was her receipt for money to be claimed of the defendants in this suit. If her conveyance was good, and the theory of plaintiff's case be law, then, although an heir sells in partition only his title, he would be bound to pay off all the debts of the estate; for if the land was ever sold, he would be bound to refund all the money received by him, with interest. The injustice of such a principle is manifest.

The rule caveat emptor applies to all sales in partition; the parties selling are not “responsible for the title,” either in law or equity--Owsley v. Smith, 14 Mo. 155; Swartz v. Dryden, 25 Mo. 572. Equity will not interfere to restrain the collection of the purchase money on the ground of failure of the title-- Ib. A fortiori, it will not order the money to be refunded, with interest, many years after payment.R. M. Field and C. H. C. Chapin, for respondents.

I. The defendants, as heirs of Thomas F. Smith, Sen., having assets by descent, were liable for his debts; in other words, the debts of their father became their own, and they were liable to suit by the creditors after the personal estate of the father was exhausted--Bac. Abr. tit. Heir, F.,--; 2 Spence's Eq. 388; 4 Kent's Com. 419 et seq.; 2 Tuck. Com. 107 et seq.

The expeditious remedy given by statute to the creditor to obtain a sale of the land under the order of the Probate Court, has in general taken the place in practice of a suit against the heir; but the latter remedy remains, and is generally resorted to after the close of the administration, as being in such case more expeditious and direct--Miller v. Woodward, 8 Mo. 169; Dobyns v. McGovern, 15 Mo. 662; Schermerhorn v. Barnhardt, 7 Paige, 354; S. C. 9 Id. 28; Piatt v. St. Clair, 6 Ham. 227; Hilden v. Morent, 2 J. J. Marsh, 187; Ticknor v. Harris, 14 N. H. 272; Elwood v. Diefenderf, 5 Barb. 398; Dodge v. Manning, 11 Paige, 347; Morris v. Monat, 2 Paige, 590.

II. The proceeds of the sale in the partition between the defendants were chargeable with the debts of Thomas F. Smith, and if they had remained in court would have been applied directly to satisfy the claims of creditors--Langham v. Darby, 13 Mo. 653; Van Wezel v. Wyckoff, 3 Sandf. Ch. 528.

III. The plaintiffs having been compelled, for the protection of their own interests, to pay the debt of the defendants, are entitled to be reimbursed by the latter; and besides they are entitled in equity to be subrogated to every right of the creditor whose debt they have paid--Deering v. Winchelsea, 11 Wh. & Tud. Lea. Cas. 78, and notes; Miller v. Wood, ward, ubi supra;McCormick v. Irwin, 35 Pa. 111.

And the same principle applies to the case where a creditor has a lien on two funds, and he resorts to the one in which another is interested; that other is entitled to be subrogated to the rights of the creditor in the other fund--1 Sto. Eq. § 559. And the principle has been applied to a case where a person holding under a defective title pays off encumbrances upon the estate, the real owner will not be allowed to recover the estate without paying the amount of the encumbrances--Bright v. Boyd, 1 Sto. 478; Valle v, Fleming, 29 Mo. 182.

IV. Nor is there any evidence that the purchasers had notice of the existence of unpaid debts against the estate. It sufficiently appears that at the time of the sale both the plaintiff and defendants were ignorant of the existence of such debts. And in respect to Metcalf, the principal purchaser, it was distinctly proven by the counsel who examined the title for him that no such notice was had by him. There was no lis pendens that would affect the plaintiffs with notice, for in fact there was no writ served in the suit by Chambers' administrator before the sale in partition, and no person is affected with a notice of lis pedens until process served--Murray v. Ballou, 1 Johns. Ch. 576.

WAGNER, Judge, delivered the opinion of the court.

In the year 1843 Thomas F. Smith died seized of a tract of land con taining 640 acres, lying and being situate in the county of St. Louis; his estate was duly administered on, and the settlement of the administrator in March, 1857, showed a balance in his hands of personal effects amounting to $817.52. In the year 1852 the defendants in this suit, who are heirs at law of Thomas F. Smith, united in a petition for partition of the land, and commissioners were appointed by the court, who reported that the land was not susceptible of division without prejudice; whereupon the court ordered the same to be sold by the sheriff. The tract, for the purpose of sale, was divided into several parcels, a portion of which plaintiffs purchased when sold in partition. Previous to the sale, Metcalf, who was a non-resident, employed an attorney to examine the records to see whether there were any encumbrances or debts owing by the deceased which would affect the title to the land. After diligent search in the Probate Court the attorney found none, and so represented, and upon the faith of that representation Metcalf made the purchase.

In September, 1853, Sturgeon, administrator of Chambers, commenced an action for breach of covenant against Beckwith, the first administrator of Smith, upon the covenants of a deed executed by Smith in 1843, laying the breach as occurring in 1848, five years after Smith's death. The writ was returnable to the October term, 1853, of the St. Louis Land Court....