Sturgeon v. Schaumburg

• Decision Date: 31 March 1867
• Citation: 40 Mo. 482
• Parties: THOMAS L. STURGEON, Administrator of WILLIAM CHAMBERS, deceased, Appellant, v. ORLEANA C. SCHAUMBURG et als., Respondents.
• Court: Missouri Supreme Court

40 Mo. 482

THOMAS L. STURGEON, Administrator of WILLIAM CHAMBERS, deceased, Appellant,

v.ORLEANA C. SCHAUMBURG et als., Respondents.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Circuit Court.

B. A. Hill, for appellant.

Glover & Shepley, for respondents.

HOLMES, Judge, delivered the opinion of the court.

The case comes to this court by appeal from a judgment on demurrer to the petition.The suit was founded upon a written contract under seal between William Chambers, William Christy, and Thomas Wright, dated Aug. 30, 1830.The parties had previously made a partition among themselves of a tract of land held by them as tenants in common under Louis Labeaume, and the general tenor of the contract related to costs and expenses to be incurred in prosecuting or defending the title to the lands so divided in partition, and to the equalization of losses which might be sustained by reason of defects in the title; and the particular clause which was made the foundation of this action read as follows: “And in the event of any suit or suits being prosecuted by or against the parties aforesaid, or either of them, involving the title of the original grant to Louis Labeaume, the expenses shall be equally borne by the parties hereto.”The previous clauses related to suits and matters then pending and existing; the whole contract terminating with this clause, “for the performance of which we bind ourselves, our heirs, executors, and administrators.”

The suit is brought by the administrator of William Chambers against the heirs and devisees of William Christy, who died in 1837, and for expenses of suits concerning the title to said lands which were prosecuted or defended by the administrator after the decease of the original party whom he represented.

We think the demurrer was well taken.The contract concerned the personal acts of the persons named only, and related to suits to be prosecuted by or against them or either of them, and at least commenced during the life of the party concerned, and to expenses which should be incurred in such suits.It did not embrace suits and expenses which should arise after the decease of the contracting parties, and be prosecuted or defended by their heirs and devisees, or legal representatives.The whole scope of the agreement was confined to the immediate parties, to acts to be done by either one of them, and to suits which were at least begun to be prosecuted or defended by him in his lifetime and to the expenses to be incurred therein.If any demand had arisen upon a breach of this contract in favor of William Chambers in his lifetime, or after his decease, it would doubtless have been a debt against the other parties or their estates.No such demand ever arose or existed under the contract, upon this petition.

If the suits in which the expenses sued for were incurred had been commenced by or against William Chambers in his lifetime, there is authority for saying that his administrator might have been bound to go on with them to their termination, and that all the expenses incurred therein, either before or after his decease, would have been incurred under this contract and by authority of its provisions, and that the debts thus created against the other parties, or their heirs, devisees, and legal representatives, would have been assets of the estate of William Chambers for which his administrator might sue in his representative capacity; for this would not have been a personal engagement merely to be performed by the party himself only, depending upon his personal judgment, skill and taste, and it might have been implied that he undertook and covenanted to prosecute or defend such suit to the end, and that the other parties covenanted to pay to him or his personal representatives their respective proportions of the expenses to be incurred therein--Marshall v. Broadhurst, 1 Cromp. &Jer. 403;S. C. 1 Tyr. 348;Siboni v. Kirkman, 1 Tyr. & Gr. 777;Edwards v. Grace, 2 Mees, &W. 190; Chit. on Cont. 98.Wherever the testator is bound by the...