State ex rel. Griffith v. Holt

• Decision Date: 31 October 1858
• Citation: 27 Mo. 340
• Parties: THE STATE, TO THE USE OF GRIFFITH et al., Respondents, v. HOLT et al., Appellants.
• Court: Missouri Supreme Court

27 Mo. 340

THE STATE, TO THE USE OF GRIFFITH et al., Respondents,

v.HOLT et al., Appellants.

Supreme Court of Missouri.

October Term, 1858.

1. A judgment rendered by a Probate Court against an administrator, requiring him to pay over to the distributees a certain sum of money as assets of the intestate's estate, is, in the absence of fraud or collusion, conclusive upon the securities of the administrator in a suit on his official bond.

Appeal from Hannibal Court of Common Pleas.

Allen, Green and Harrison, for appellants.

Dryden, for respondents.

I. The judgment of the County Court was conclusive upon the administrator and upon his securities. (1 J. J. Marsh. 176; 7 Barr, 265; 5 Indiana, 204; 20 Pick, 58; Rapelye v. Prince, 4 Hill, 123.)

NAPTON, Judge, delivered the opinion of the court.

The plaintiffs, as assignees of the distributees of Nancy Wilson, deceased, obtained an order on the County Court of Marion county for distribution to them, by the administrator, of a certain sum of money as assets of the estate; and upon an appeal to the Circuit Court this order was confirmed. This suit was against the administrator and his securities for a breach of his official bond in not paying over according to said order or judgment; and the question was, whether the securities were bound by the judgment, or were at liberty to show that the administrator had no assets in his hands, notwithstanding the judgment aforesaid.

The civil law regarded the relation of principal and surety as creating such a privity of interest as made the surety responsible for whatever bound the principal; but the security was allowed to contest the liability of the principal in any action against the latter, and to appeal from the judgment, if it was unfavorable. (6 Johns. 158; Pothier, part 4, ch. 3.) The general rule of the common law is undoubtedly otherwise. A judgment by the common law binds only parties and privies--privies in blood, in estate or in law; and as a security has no opportunity of contesting the propriety of a judgment against his principal, nor of appealing from it after it is rendered, he is not in general bound by it. Hence, in North Carolina, in the case of Kellar v. Bowell & Campbell, 4 Hawks, 37, the Supreme Court of that state decided that a recovery against a guardian was not even evidence against their securities in an action brought against them on that judgment to subject them on their bond for the default of their principal; and in McBride v. Clark, 2 Hawks, 43, the same court determined that the record of a recovery by a creditor of an intestate against his administrator was inadmissible as evidence in a suit by the creditor against the securities. So in Beal v. Beck, 3 Har. & McHen. 242, the Supreme Court of Maryland decided that in debt upon a sheriff's bond against a security, a judgment against the sheriff for the same cause of action was no evidence against the surety. In Drummond v. Ex'r of Prestman, 12 Wheat. 515, the Supreme Court of the United States, in the case of a guaranty, held that a judgment confessed by the principal was prima facie evidence against the security in an action against him on his guaranty. Disapproving the decision of Beale v. Beck, they still admit that the judgment in that case against the sheriff would not be conclusive against his securities. In Pennsylvania, the decrees of their Orphans' Courts are held conclusive against the securities of the administrator; but the courts have construed the statutes there as allowing the sureties to appeal from decrees against their principal, and, if they so desire, to become parties in the original proceedings in the Orphans' Court. (Garber v. Commonwealth, 7 Barr, 265.) In Massachusetts, the case of Heard v. Lodge, 20 Pick. 53, decides that a judgment against an administrator was conclusive in a suit against him and his securities for failing to pay it, unless the securities could show that it was obtained by fraud or collusion. The court says that the duty the securities have assumed is, “that their principal will pay on demand all debts ascertained by order of a court of law against him as administrator, if the estate be solvent. His failure to make payment is a breach of the bond.” This opinion was followed by the Supreme Court of Indiana, in 1854, in Solyer v. The State, on the relation of Taynor, 5 Porter, 203. In Kentucky, the same principle was held in Hobben & Churchill v. Middleton, 1 J. J. Marsh. 179. The Court of Appeals say: “The responsibility of securities being incidental and collateral to that of the principal, a judgment in favor...