State ex rel. Hospes v. Branch

• Decision Date: 15 June 1896
• Parties: The State ex rel. Hospes et al. v. Branch et al., Appellants
• Court: Missouri Supreme Court

36 S.W. 226

134 Mo. 592

The State ex rel. Hospes et al. v. Branch et al., Appellants

Supreme Court of Missouri

June 15, 1896

Appeal from St. Louis City Circuit Court. -- Hon Daniel Dillon Judge.

Reversed and remanded.

R. S MacDonald and E. C. Kehr for appellant.

(1) Where one holds an estate in one trust capacity, which he is required to pay or deliver to himself in another trust capacity, inasmuch as he can not sue himself, the law eo instante transfers the estate from himself in the one capacity to himself in the other. State to use v Hearst, 12 Mo. 365; Walker's Adm'r v. Walker, 25 Mo. 367; Babb v. Ellis, 76 Mo. 459; Tittmann v. Green, 108 Mo. 22; State ex rel. v. Branch, 112 Mo. 661; State to use v. Cheston, 51 Md. 352; Gilmer v. Baker, 24 W.Va. 72; Commonwealth v. Gould, 118 Mass. 300; Todd v. Davenport, 22 S.C. 147; In re Sandison's Estate, 72 Hun, 160; Taylor v. De Blois, 4 Mason C. C. R. 131; Seegar v. State, 6 Harris & Johnson, 162. (2) If Branch did not have the assets of his ward on hand when he became trustee, it was his duty as trustee at once to collect them, and failure so to do constitutes a breach of his bond as trustee and renders the sureties on it liable for the amount lost. The sureties on the trustee's bond being liable, the sureties on the curator's bond are exonerated. Tittmann v. Green, 108 Mo. 22; Gilmer v. Baker, 24 W.Va. 72; Smith v. Gregory, 26 Grattan, 248; Bell v. The People, 94 Ill. 230; Crocker v. Dillon, 133 Mass. 99; Schouler's Dom. Rel. [4 Ed.], sec. 324. (3) Branch's sureties on the trustee's bond are bound by his acts as trustee. In re Sandison's Estate, 72 Hun, 160. The judgment against Branch in cause number 75841, is evidence of the liability of the sureties on the trustee's bond and plaintiffs base their suit against Chouteau upon it. Treweek v. Howard, 105 Cal. 434; Billinger v. Thompson, 26 Ore. 320; Douglas v. Ferris, 138 N.Y. 192; Hailey v. Boyd's Adm'r, 64 Ala. 399. (4) A decree in equity for the payment of money merges the original debt in the same manner and to the same extent as a judgment at law. 2 Black on Judgments, sec. 675; 1 Freeman on Judgments, sec. 248; Herman on Estoppel and Res. Jud., secs. 407 and 408; Caldwell v. White, 77 Mo. 471; Corcoran v. Canal Co., 94 U.S. 741; Louis v. Brown Town, 109 U.S. 167. (5) The sureties can only be held for the default of the principal. Whatever protects and discharges the principal protects and discharges the sureties. State to use v. Coste, 36 Mo. 437; 1 Herman on Estoppel and Res. Jud., secs. 158, 160, and 162; Bush's Heirs v. Hampton, 4 Dana (34 Ky.), 83; Inhabitants v. Moore, 15 N. J. L. 146; Hill v. Bain, 15 R. I. 75; Featherston v. Turnpike, 71 Hun, 109; Scroggin v. Holland, 16 Mo. 419. (6) Relators are estopped to deny that the fund came to the hands of Branch as trustee, and was converted by him in that capacity. The issue is res adjudicata. 1 Freeman on Judgments [4 Ed.], secs. 249, 253, 257; also, sec. 310; Cromwell v. County of Sac, 94 U.S. 351; Outram v. Morewood, 3 East, 346; Caperton v. Schmidt, 85 Am. Dec. 187; Hickerson v. Mexico, 58 Mo. 61; Edgell v. Sigerson, 26 Mo. 583; Young v. Byrd, 124 Mo. 590. (7) A party can not assume successive positions in the course of a series of suits in reference to the same fact, or state of facts, that are inconsistent or contradictory. Alice Crookes having, in her various suits, alleged and charged that Branch received and converted her estate as trustee, will not be allowed to assert the contrary in the present suit. She has chosen her position and the former suits estop her. 2 Black on Judgments, sec. 632; Bigelow on Estoppel [5 Ed.], p. 673; Herman on Estoppel and Res. Jud., secs. 287, 288, 1028, 1040, 1051, 1055, and 1057; Lilley v. Adams, 108 Mass. 50; Martin v. Boyce, 49 Mich. 122. (8) What the record decides is a matter of law for the court. Young v. Byrd, 124 Mo. 590. There being no ambiguity in the record, oral evidence to explain, controvert, or impeach it is inadmissible. 2 Black on Judgments, sec. 625; Armstrong v. St. Louis, 69 Mo. 309; St. Joseph v. Railroad, 116 Mo. 636; Case v. Gorton, 33 Mo.App. 597; Sconce v. Long Bell L. Co., 54 Mo.App. 509; Chapman v. Smith, 16 How. (57 U.S.) 114.

B. Schnurmacher and Jos. S. Laurie and Valle Reyburn for respondents.

(1) The instructions given by the trial court are in strict conformity with the law as declared by this court. 126 Mo. 448. The two actions are not between the same parties or their privies. As said by Judge Sherwood in Quigley v. Bank, 80 Mo. 289: "It is a general principle fundamental to the doctrine of res adjudicata that personal judgments conclude only parties to them and their privies (Bigelow on Estop., p. 59; Greenleaf, Ev., sec. 535); and can not be invoked by strangers nor pleaded by them. Freeman on Judg., sec. 154; Henry v. Woods, 77 Mo. 277." First. The plaintiffs in the two actions are different. Dollarhide v. Parks, 92 Mo. 178. Second. The defendants in the two actions are different. Third. So it is necessary to create the estoppel that the party sought to be bound must have appeared in both actions in the same capacity or character. Black on Judgments, sec. 536; Bigelow on Estoppel, pp. 130, 131; Banka v. Railroad, 63 N.W. 116; Terrill v. Boulware, 24 Mo. 254; Henry v. Woods, 77 Mo. 277. Fourth. Appellant was not privy to the former judgment. Fifth. The scope of the estoppel created by the former judgment does not include any issue or fact in the present suit. Cromwell v. County of Sac, 94 U.S. 351. (2) Fraud and ignorance release an estoppel. Gillett v. Wiley, 126 Ill. 310; Moran v. Plankington, 64 Mo. 337. The doctrine of election can have no application whatever, for the reason that the remedies on the two bonds are not inconsistent but concurrent. Plaintiff may sue upon either bond or both, and a judgment upon one bond, without satisfaction, would not bar an action on the other bond. This has been repeatedly decided by our supreme court and the appellate courts of other jurisdictions. State v. Drury, 36 Mo. 281; State v. Berning, 74 Mo. 87; State v. Schaeffer, 74 Mo. 154; State v. Jones, 89 Mo. 470; State v. Bilby, 50 Mo.App. 162; Harris v. Harrison, 78 N.C. 202; Culp v. Lee, 109 N.C. 675; Smith v. Gregory, 26 Gratt. 248; Lee v. Lee, 67 Ala. 406; S. C., 55 Ala. 590.

Macfarlane, J. Brace, C. J., absent. Barclay, J., did not sit.

OPINION

In Banc.

Macfarlane J.

Alice Crookes, while yet a minor, received a legacy under her father's will. Defendant, Joseph W. Branch, was duly appointed her guardian, gave bond as such, and received the legacy, in April, 1875. The said Alice attained her majority February 25, 1882. Branch made final settlement of his curatorship in the probate court on July 19, 1884, in which there was found to be due his ward the sum of $ 19,832.15, which was ordered paid to the trustee of the said ward when appointed. In January, 1885, the said Alice Crookes filed her petition in the circuit court, reciting the foregoing facts, and stating that Branch then held in his hands, ready to be paid over, the said sum, and praying an order appointing the said Branch her trustee to receive and hold said sum for her use.

The court found the facts as stated, and ordered that "Joseph W. Branch be, and he is hereby, appointed trustee, with all the powers and authority in and by said will vested in her, the said Alice Crookes; and the said Joseph Branch here, in open court, accepts said trust, and files his bond in the sum of $ 40,000, with Charles P. Chouteau and R. M. Parks as securities, and conditioned for the faithful discharge of the trust, which bond the court now approves." On June 16, 1885, Branch presented to the probate court a copy of the order, and submitted his receipt as follows:

"St. Louis, Mo., June 1, 1885.

"Received this day of Joseph W. Branch, curator of the estate of Alice Crookes, the sum of nineteen thousand, eight hundred and thirty-two and 15/100 dollars, in full payment of the balance found due from him at the final settlement of her estate in the probate court of St. Louis City, July 18, 1884. Evidence of my appointment as trustee by the circuit court of St. Louis City is herewith submitted.

"Joseph W. Branch, Trustee."

Thereupon the court made this order:

"Now comes Alice Crookes, late a minor, by Joseph W. Branch, her trustee, and acknowledges in open court full and entire payment and satisfaction of the balance ordered to be paid and delivered to her upon the final settlement of said Joseph W. Branch, curator of her estate heretofore made herein. It is thereupon ordered by the court that said Joseph W. Branch be, and he is hereby, finally discharged as such curator. Receipt filed."

This suit is against Branch and his securities upon his curator's bond, and charges a conversion of the funds prior to his appointment as trustee. This is the third appeal. The opinion of the court in the two former appeals will be found reported, respectively, in 112 Mo. 661, and 126 Mo. 448, to which reference is made for a more specific statement of the facts.

The original answer stated all the foregoing facts, and it was claimed that thereunder the judgments and orders of the probate court were conclusive on Miss Crookes that the funds had been transferred from Branch as guardian to Branch in his capacity of trustee. After the second appeal, defendant filed an amended answer, in which he stated all the foregoing facts and the following additional new matter: On the seventh of March, 1888, the said plaintiff, Alice Crookes, commenced her suit in the circuit court of the city of St. Louis against Branch, in which she charged that, as trustee, he had received the trust funds, and had afterward misapplied and converted them to his own use, and neglected and...