State ex rel. Walsh v. Dailey

• Decision Date: 04 November 1879
• Citation: State ex rel. Walsh v. Dailey, 7 Mo.App. 548 (Mo. App. 1879)
• Parties: STATE OF MISSOURI, TO USE OF THOMAS WALSH, Respondent, v. THOMAS J. DAILEY ET AL., Appellants.
• Court: Missouri Court of Appeals

7 Mo.App. 548

STATE OF MISSOURI, TO USE OF THOMAS WALSH, Respondent,

v.THOMAS J. DAILEY ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Nov. 4, 1879.

Where an administrator begins a proceeding under the Claim and Delivery Act for goods which he claims as belonging to his intestate, if the judgment is against him, it is not a judgment de bonis propriis; and if the administrator has taken the property claimed, and the defendant in replevin elects to take its value, and one of the sureties of plaintiff in the replevin suit is compelled to pay the judgment and obtains judgment against his principal on motion under the statute, the Circuit Court, on rendering this judgment, may order that it be paid by the administrator; and if the judgment is not paid, and the order not obeyed, an action will lie against the administrator and the sureties on his bond.

APPEAL from St. Louis Circuit Court.

Affirmed.CLINE, JAMISON & DAY, for appellants: The plaintiff has no right to claim indemnity of the administrator's sureties for the wrong complained of, unless they can show an interest in the estate.-- Holmes v. Cock, 2 Barb. Ch. 426, 429; Brandt on Surety. 640, sect. 502; Rowson v. Piper, 34 Me. 98; Williams on Ex. 536, note l. And it must be a vested, not a contingent interest.-- Stevens v. Cole, 7 Cush. 467. The surety is bound only for the faithful performance of the duties of an administration.-- Harker v. Irrick, 10 N. J. Eq. 269; Cunningham v. Sonza, 1 Redf. 462. And only for the administration of such assets as the administrator had a right to receive.-- Fletcher v. Sanders, 7 Dana, 345, 350; Blair v. Insurance Co., 10 Mo. 559.

G. M. STEWART, for respondent: An administrator may bring an action of replevin.-- Walton v. McDonald, 2 Mo. 48, 49; Ranney v. Thomas, 45 Mo. 112. And in the event of judgment against him, it must be de bonis testatoris.-- Wooldridge v. McDonald, 15 Mo. 470; The State to use v. Maulsby, 53 Mo. 500; Ross v. Allman, 60 Mo. 269. And such a judgment could not be proved against the estate.-- Presbyterian Church v. McElhinney, 61 Mo. 540; Werneke v. Kenyon, 66 Mo. 275. But would be a demand for which the administrator's sureties would be liable.-- Dix v. Morris, 1 Mo. App. 93; Dix v. Morris, 66 Mo. 514. When a surety pays a debt of his principal, he becomes ipso facto entitled to all the benefits that the creditor may have been entitled to by virtue of collateral security.-- Allison v. Sutherton, 50 Mo. 274. The order of the Circuit Court made upon the administrator to pay the plaintiff the amount he had paid to satisfy the judgment in the replevin case was imperative, and the disobedience of it a breach of the administration bond, and the sureties were concluded by this order.-- The State v. Holt, 27 Mo. 340; Taylor v. Hunt, 34 Mo. 205; The State v. Coste, 36 Mo. 437; Townsend v. Townsend, 60 Mo. 246; McCartney v. Garneau, 4 Mo. App. 566.BAKEWELL, J., delivered the opinion of the court.

The defendant Dailey, as administrator of Roddy, commenced an action under the statute for the possession of specific personal property which he claimed as belonging to the estate of his intestate. Plaintiff's relator was one of the sureties in the bond given by the administrator on instituting this action. The personal property claimed was delivered by the sheriff to Dailey, who received the same as administrator. Judgment was for defendant and against the sureties, in that action, for the value of the property and costs. The principal and co-surety of Walsh, the relator of plaintiff in the present action, being insolvent, Walsh, the relator of plaintiff, was compelled to satisfy the judgment. Under the statute (Wag. Stats. 1304, sect. 9), which provides that where judgment is given on any bond for the delivery of property, against the principal debtor and surety, if such surety shall pay the judgment he shall have judgment, on motion in the same court, against the principal debtor for the amount paid and ten per cent interest, Walsh obtained judgment in the Circuit Court against Dailey as administrator of Roddy, for the amount paid by him, as aforesaid, and interest; the Circuit Court at the same time ordering Dailey, as administrator, to pay the sum to Walsh, plaintiff's relator. This action is upon the bond of Dailey as administrator, against him and his sureties, and alleges these facts, and that the relator of plaintiff has made demand of Dailey, which has been refused. The petition alleges, as breaches of the administrator's bond, that Dailey did not pay the value of the property to the defendant in the action for the personalty, in consequence of which default plaintiff's relator was compelled to pay the same; and that Dailey did not pay to plaintiff's relator the judgment obtained against him by the relator in the Circuit Court, though ordered to do so, and though demand was duly made.

A demurrer to this petition was interposed by one of the defendant's sureties on the administrator's bond on the ground that the petition shows no cause of action against the sureties on the administrator's bond. The demurrer was overruled, and there was final judgment for plaintiff.

An administrator may bring an action for the possession of goods claimed by him as belonging to the estate of his intestate, and if judgment goes against him in the action, it goes against him as administrator only, and is not de bonus propriis. Ranney v. Thomas, 45 Mo. 112. This judgment, if he had done his duty, the administrator must have the means of satisfying out of the assets of the estate, because it is a judgment that he return property, or its value, which he has actually received as administrator, under a mistaken claim. The sureties on the bond of the administrator are responsible for all moneys and property that come into the hands of the administrator as such in virtue of his office. Thus, the sureties are liable for rents collected by an administrator, though as administrator he was not to collect rents, and for the proceeds of real estate sold by the executor under a power given in the will, though that power was unduly exercised. Gamble v. Gibson, 59 Mo. 585; Dix v. Morris, 66 Mo. 514. When judgment in the claim and delivery suit was given against the administrator, the defendant in that action might, if he had so chosen, have proceeded against the administrator and the sureties on his official bond. From the moment that the administrator received the personalty claimed by him in the statutory action, that personalty became the property of the estate. It was certainly not the property of the administrator; and the defendant in the claim and delivery suit, by refusing to take it back, abandoned all claim to the specific personalty. All money or other goods which the administrator receives as administrator are the property of the estate, within the meaning of that language in the bond, irrespective of any question which may arise as to the manner in which they were acquired. The bond of the administrator is that he “will faithfully administer the estate, account for, pay, and deliver all money and property of said estate, and perform all other things touching said administration required by law or the order or decree of any court having jurisdiction.” Wag. Stats. 73, sect. 18. It is said that the judgment in the action claiming the property was a judicial determination that the goods delivered to the administrator by the sheriff were not the property of the estate. It settled that the administrator had no right to the possession of them at the time the claim was made; but whether the deceased owned them or not, or whether they properly came into the possession of the administrator as having...