St. Louis National Bank v. Field

• Decision Date: 15 May 1900
• Citation: 56 S.W. 1095,156 Mo. 306
• Parties: ST. LOUIS NATIONAL BANK et al. v. FIELD, STORTS et al.; E. B. FIELD, Administrator, Appellant
• Court: Missouri Supreme Court

56 S.W. 1095

156 Mo. 306

ST. LOUIS NATIONAL BANK et al. v. FIELD, STORTS et al.; E. B. FIELD, Administrator, Appellant

Supreme Court of Missouri, First Division

May 15, 1900

Appeal from Saline Circuit Court. -- Hon. Richard Field, Judge.

Reversed and remanded (with directions).

Johnson & Lucas and Chas. M. Hawley for appellant.

(1) Our administration laws furnish ample authority for the administrator to care for and preserve the estate, to lease and repair realty without any permit from the circuit court and he is required to do so and is liable on his bond for any waste or mismanagement of the estate. R. S. 1889, secs. 100 101, 129 and 130; Powell v. Powell, 23 Mo.App. 365; Eoff v. Thompkins, 66 Mo. 225; Lass v Eisleben, 50 Mo. 122; Lewis v. Carson, 16 Mo.App. 342; s. c., 93 Mo. 587. (2) Where a court not only possesses jurisdiction over a particular cause, but that jurisdiction is of a peculiar and exclusive nature, its sentence, order or decree, exdirecto, in a matter properly cognizable there, is conclusive, whenever the same matter shall come in question collaterally in any other court, whether it be a court of law, or a court of equity. Story's Eq. Plead. (6 Ed.), sec. 786; Beames Pleading in Eq., 201; Cooper Eq. Pl., 268; Griffith v. Hamilton, 12 Ves. 307. (3) The probate court has original exclusive jurisdiction over the leasing of lands by administrators. The appellant, as administrator of the estate of Joseph Field, deceased, having taken charge of and leased the lands of said decedent by order of the probate court, the circuit court had no authority or jurisdiction to appoint a receiver to take charge of, lease and collect the rents for the same. R. S. 1889, sec. 3397; Rogers & Baldwin Hard. Co. v. Cleveland Bldg. Co., 132 Mo. 442; Metzner v. Graham, 57 Mo. 404; Johnson v. Beasley, 65 Mo. 250; French v. Stratton, 79 Mo. 560; Caldwell v. Hawkins, 73 Mo. 450; Chandler v. Dodson, 52 Mo. 128; Pearce v. Calhoun, 59 Mo. 271; Cones v. Ward, 47 Mo. 289; Bauer v. Gray, 18 Mo.App. 173.

D. D. Duggins and John A. Rich for respondent Storts.

(1) The appellant, in his answer, unites in the prayer of the plaintiffs and becomes really one of the plaintiffs to the bill in equity. The bill seeks to wipe out and destroy the only security the respondent, Storts, as assignee of the Citizens' Stock Bank, held. The respondent in his answer denies the fraud, and denies the failure of consideration and at the same time asks that a receiver be appointed to take charge of the property in litigation, and it appears clearly that a court of equity has full power and authority to make such appointment. Sec. 2193, R. S. 1889. (2) This power is inherent in the court and not dependent upon any statute. No statute deprives the court of that power. Cox v. Wolkert, 86 Mo. 511. (3) It is not contended by the appellant in his brief that the court abused a sound discretion in appointing a receiver, and the order of the court in appointing a receiver will not be interferred with on appeal, except in cases where the discretion has been manifestly abused. 5 Thompson Com. on the Laws of Corps., sec. 6823. (4) The statute says a receiver may be appointed in any legal or equitable proceeding. In this case the appellant is virtually one of the plaintiffs, seeking to destroy the deed of trust, the respondent had filed his answer, and the case was properly in court. Suit is commenced when the petition is filed. Sec. 2013, R. S. 1889; So. Mo. Lumb. Co. v. Wright, 114 Mo. 326; Thompson v. Greeley, 107 Mo. 589.

OPINION

VALLIANT, J.

This is an appeal from an order of the circuit court of Saline county, refusing to revoke its order appointing a receiver.

The plaintiffs had, before this suit, brought suits by attachment against Joseph Field in his lifetime, under which the lands in question were attached. Pending those suits Joseph Field died, intestate. The suits were revived and proceeded to judgments against his administrator. Just before the institution of those attachment suits Joseph Field executed a deed of trust conveying the land to secure the Citizens' Stock Bank in certain alleged indebtedness. The petition in the case at bar attacks that deed of trust, alleging that it was executed for the purpose of defrauding the creditors of the grantor, and that it was without consideration. The object of the suit is to obtain a decree cancelling the deed of trust, and subjecting the land primarily to the payment of plaintiffs' judgments. It appears in the petition that the Citizens Stock Bank made an assignment for the benefit of its creditors. The defendants in the case are the administrator of Joseph Field, the assignee of the bank, and the trustee in the deed of trust.

The administrator filed a separate answer in which he avers, among other things, that the deed of trust was invalid because it was executed without consideration, that the estate is insolvent, that the land is necessary to pay the debts, that under orders of the probate court he has taken possession of it, leased it and is proceeding to administer upon it in due course; the answer is made a cross bill against his co-defendants, and prays that the deed be cancelled. The assignee answers admitting the assignment, etc., and the execution of the deed of trust, and denies all the other allegations. The answer of the trustee is a general denial. The assignee in addition to his answer, filed also a petition stating that the property described in the deed was insufficient to pay the debt sought to be secured, that the estate was insolvent, that the administrator, under order of the probate court had taken possession of the mortgaged land, and rented it; that the rents would be needed in the payment of the mortgage debt, and prayed that a receiver be appointed to take possession, collect rents, etc. Upon hearing that petition the proof tended to sustain its allegations, the court appointed a receiver as prayed. In due time a motion by the administrator was filed to revoke the order of appointment, which the court overruled and the administrator appealed.

There is nothing shown by the record in this case to authorize the appointment of a receiver. The property was already in the custody of the law and in the immediate care of a competent officer.

Under our law, upon the death of an intestate his whole estate real as well as personal, is liable to come into the hands of his administrator for the payment of his debts. The administrator is not authorized to take possession of the real estate until ordered to do so by the probate court, but when so ordered, and when he takes possession under such order, the land is in custodia legis, and the administrator is liable on...