Murphy v. De France

• Decision Date: 23 June 1891
• Citation: 16 S.W. 861,105 Mo. 53
• Parties: MURPHY v. DE FRANCE.
• Court: Missouri Supreme Court

16 S.W. 861

105 Mo. 53

MURPHY v. DE FRANCE.

Supreme Court of Missouri, Division No. 2.

June 23, 1891.

EXECUTORS AND ADMINISTRATORS — ALLOWANCE OF DEMANDS — ORDERS OF PROBATE COURT — RIGHTS OF HEIRS.

1. A nunc pro tunc order of the probate court, entered six years after the original order and correcting an allowance to a creditor, cannot be attacked in a collateral proceeding.

2. An attorney who, representing both the administrator and the creditors, agrees that, if the order of sale is not resisted, he will make the land bring $1,000, to be credited on the debts of the estate, is not accountable to the heirs because he bids only $100 for the land, when it appears that the debts amounted to more than $2,000, as the heirs would not have received any of the money had $1,000 been bid, and they were not therefore injured.

Affirming 15 S. W. Rep. 949.

On rehearing.

THOMAS, J.

In his motion for rehearing the plaintiff claims that this court ignored and overlooked the main issue in the case, and, in order that there may be no misapprehension in regard to the grounds on which we predicated the result reached by us, we will restate them. We understand that plaintiff bases his right to recover upon the fact that De France acted as attorney for the administrator and the creditors of the estate of Benjamin Murphy in procuring the sale of the land in 1874, and his thus acting in a dual capacity, and representing antagonistic interests, operated as a fraud both upon the estate and the creditors, and, in order to procure the sale, he promised the administrator and the court that he would make the land bring $1,000, and, having bought it for $100, he perpetrated a fraud on account of which he ought to be held, as to the land, a trustee of the heirs of deceased. Under the evidence introduced by plaintiff, we hold he has no standing in a court of equity.

He utterly failed to show that he was injured by the acts and conduct of De France. It is too well settled, to require citation of authorities to prove it, that no one can be heard to complain in a court of justice unless he can show, and does show, that he has been injured. In other words, no one can obtain relief in the courts by showing some one else has been injured. Plaintiff says he was entitled to a homestead interest in the land at the time of the sale. If so, that interest was not sold. Poland v. Vesper, 67 Mo. 727. Besides that, the plaintiff was over 21 years old when the suit was instituted, and his homestead interest, if he ever had any, became extinguished on his arrival at full age. Again, the bulk of the debts for which the land was sold antedated the homestead law of 1863, and as to them no homestead in the widow and children of the debtor existed. Kelsay v. Frazier, 78 Mo. 111. And, in the last place, he does not aver in his petition that his claim to the land is based upon a homestead right, but upon a right derived by inheritance from the debtor. Hence he takes the property subject to the payment of the debts, and, in order for him to have any standing in court, he must show that there were no debts. The administrator alleged in his petition for the sale of the land that there were unpaid allowances against the estate amounting to $1,227.37, without interest. Plaintiff attempted to prove that two of these allowances, aggregating $739.20, were paid. But in this attempt we think he utterly failed. He proved some loose declarations that the Dodson allowance of $942 was settled. The administrator in his petition stated that this allowance was entitled to credits of $346.05 and $57, which left a balance of $539.20. Dodson was sworn in this case, and testified that this balance had not been paid. Plaintiff claims that this balance is fraudulent because the allowance was for $230 only, and that it had been fully paid in May, 1872. The record shows that the probate court of Adair county in June, 1872, on the petition of Dodson, entered an order nunc pro tunc, to the effect that the allowance was made April 3, 1866, for $942 instead of $230. This order recites that Harington & Cover appeared for Dodson, and "Guy Chandler, administrator de bonis non, for the estate of Benjamin Murphy, deceased." It is now insisted that this order is void because the probate court had not sufficient evidence to authorize the court to make it. This order cannot be attacked in this collateral proceeding. Montgomery Co. v. Auchley, (Mo.) 15 S. W. Rep. 626.

Plaintiff claims that the Dodson allowance was settled in May, 1872, and yet we find, in one month afterwards, the administrator appears in court, and the court hears the evidence and makes the order. That was the time and...