Mosman v. Bender

• Court: Missouri Supreme Court
• Writing for the Court: EWING
• Citation: Mosman v. Bender, 80 Mo. 579 (Mo. 1883)
• Decision Date: 31 October 1883
• Parties: MOSMAN, Administrator, v. BENDER, Appellant.

80 Mo. 579

MOSMAN, Administrator,

v.BENDER, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Buchanan Circuit Court.--HON. WM. H. SHERMAN, Judge.

AFFIRMED.

Ramey & Brown for appellant.

The plaintiff cannot maintain this suit upon the contract set out in the petition, in his representative capacity as administrator of Moss, and any defense can be made by defendant which could be made against Mosman, were he suing as an individual. Harney v. Dutcher, 15 Mo. 89, and cases there cited. The administrator cannot charge the estate with any indebtedness. Taylor v. Wyatt, 26 Conn. 184; Halloch v. Smith, 16 Reporter 778. The statute withholds from the administrator the authority to assign, release, or in any way to compound or meddle with any security belonging to the estate, except to collect the same, or to use it in payment of liabilities of the estate at its face value. Wag. Stat., p. 89, § 30; State v. Berning, 74 Mo. 89; Chandler v. Stevenson, 68 Mo. 450; Weil v. Jones, 70 Mo. 560; Stagg v. Green, 47 Mo. 500. The contract set up by defendant is against public policy. Porter v. Jones, 52 Mo. 399; Perry on Trusts. pp. 533, 534; Atlee v. Fink, 75 Mo. 100; Witmore v. Porter, 92 N. Y. 76. Plaintiff having agreed to recall the execution, and that no other one should issue, he violated his agreement in issuing a second one, and defendant was released.

J. D. Strong and H. K. White for respondent.

Mosman had the power to make the agreement sued upon. Hand v. Motter, 73 Mo. 457; State v. Meagher, 44 Mo. 356; Foster v. Davis, 46 Mo. 268; Julian v. Abbott, 73 Mo. 580; Burkendorf v. Vincenz, 52 Mo. 441; Fudge v. Durn, 52 Mo. 264; Gamble v. Gibson, 59 Mo. 585; Merritt v. Merritt, 62 Mo. 150; Judge v. Booge, 47 Mo. 550. The estate was the real party in interest, and entitled to sue on the contract. R. S., § 3462; Rogers v. Gosnell, 58 Mo. 589; Faulkner v. Faulkner, 73 Mo. 327. The new matter in the answer stated no defense to plaintiff's action. Faulkner v. Faulkner, 73 Mo. 327; Smith v. Gregory, 75 Mo. 421. The defendant's instructions were rightly refused. Kitchen v. Railroad Co., 67 Mo. 224; Buel v. Buckingham, 16 Iowa 284; Leabo v. Goode, 67 Mo. 126.

EWING, C.

The petition in this cause alleges that Geo. B. Moss obtained judgment against Willis M. Sherwood, Lyman W. Dinsmore and James T. Beach for $571, and died; that afterwards the plaintiff, Mosman, was appointed his administrator; that said judgment was a lien upon the real estate of the said Willis M. Sherwood and James T. Beach, defendants therein, and an execution was issued and levied on certain lands belonging to them, and the same were advertised for sale to satisfy said execution. That at said time the defendant and one James Hunter were about to become interested in the lands owned by Willis M. Sherwood, which were advertised for sale as aforesaid, and on the 14th day of January, 1874, an agreement was entered into by defendant, on behalf of himself and the said Hunter, and this plaintiff, as administrator of the estate of the said George B. Moss, deceased, on behalf of said estate, whereby it was stipulated and agreed that this plaintiff should as such administrator, recall said execution and not permit or allow a sale to be made under the levy thereof, of the lands of the said Sherwood, but return the same, and that the defendant and the said Hunter would purchase said lands so bound by the lien of said judgment, owned by the said Sherwood, and would pay to the estate of the said George B. Moss, deceased, the one-half of the sum due to said estate upon said judgment. That in pursuance of said agreement this plaintiff, as such administrator, stopped the sale of said lands, under said execution and advertisement, and said lands were not sold thereunder, and said execution was by his order returned; that in pursuance of said agreement and understanding, the defendant and said Hunter purchased said land and caused it to be conveyed to the defendant, paying therefor not more than one-seventh of its market value, and the defendant, on behalf of himself and said Hunter, took the possession, control and management thereof, negotiated a sale of said lands and sold and conveyed the same, or caused the same to be sold and conveyed, to one Colt, and defendant received the sum of $3,500, the proceeds of said sale, and set apart out of said funds so in his hands, with the consent of the said Hunter, the sum of $300 to pay the said one-half of the amount due on said judgment to said estate, and by and with the consent of said Hunter and of this plaintiff, who as an individual had become interested in the proceeds of the sale of said land, retained in his hands said sum of $300, in pursuance of said original agreement, as money due and owing to the estate of Geo. B. Moss, deceased, as the one-half of the sum due it upon said judgment, and promised and agreed with them to pay the same to said estate, and in consideration thereof was permitted to and did take credit for said amount in his said accounts with said Hunter and this plaintiff. That this plaintiff, relying on the agreement made by the defendant as aforesaid, to pay to said estate the one-half of the sum due to it on said judgment, refused to sell said land under said execution, recalled the same and returned it, and permitted the lien of said judgment to expire, and thereupon defendant refused as aforesaid to pay said amount.

Defendant, answering, says that about the month of March, 1873, the said plaintiff and his then law partner, James Hunter, and William M. Albin and this defendant were interested in certain lands which had formerly belonged to one Willis M. Sherwood, and on which it was claimed that a judgment in favor of Geo. B. Moss, against said Sherwood was a lien. That an execution had been issued on said judgment, and had been levied on said land; that it was agreed between said parties, that is to say, the said plaintiff, this defendant, the said Hunter, and the said Albin, that they would jointly, out of their interests in said lands, or of the proceeds of the sale thereof, pay on account of said judgment in favor of said Moss one-half thereof, if plaintiff as administrator of the estate of the said Moss would cause the execution issued on said judgment, to be returned without any sale of said property being made, and would not cause another execution to be issued on said judgment. That at the time of the rendition of the said judgment in favor of Moss against Sherwood, the lands of Sherwood were subject to a prior lien, to the extent of about $4,000, which was and is a greater sum than the value of all the lands the said Sherwood then had, or at any time since has had, here or elsewhere; and that this defendant acquired the title of said Sherwood to said lands of Sherwood, under and by virtue of said prior lien thereon. That afterward said land was sold by defendant for the benefit of defendant, plaintiff, Albin and Hunter. That a part of the amount for which said land was sold was by the agreement of said parties to pay various liabilities incurred by them on account of said land, and which was supposed at the time to be sufficiently large to pay all such liabilities and all other liabilities that they might incur to perfect their title to said land. That after the sale, a division of the proceeds, less the amount set apart to pay liabilities, was made, and $556.54 paid to plaintiff as his share of the sale. That the amount of money set apart for the payment of liabilities, incurred on account of said land as aforesaid, has been paid out on account of such liabilities, without any part thereof being applicable to the payment of the Moss judgment. That plaintiff has persistently refused to contribute the money or any part thereof necessary to pay one-half of the Moss judgment. That Hunter had not contributed his share; and that Albin and defendant had not recovered their share of the sale proceeds. That plaintiff, afterward in violation of his agreement, sued out execution on said judgment and...