Taylor v. Priest

• Decision Date: 20 April 1886
• Citation: 21 Mo.App. 685
• Parties: MARY L. TAYLOR, Respondent, v. JOHN G. PRIEST, Appellant.
• Court: Missouri Court of Appeals

21 Mo.App. 685

MARY L. TAYLOR, Respondent,

v.JOHN G. PRIEST, Appellant.

St. Louis Court of Appeals, Missouri.

Apr. 20, 1886.

APPEAL from the St. Louis Circuit Court, SHEPARD BARCLAY, Judge.

Affirmed.

W. H. CLOPTON, for the appellant: If the plaintiff is a general creditor she should have presented her claim for allowance in the time prescribed by statute. Titterington v. Hooker, 58 Mo. 593. If the plaintiff is a special creditor, and the time for proving claims against the estate has passed, she must proceed against the heirs. And as there are no heirs, the plaintiff can not recover at all. The devisees of Isaac Walker take their shares in the real estate discharged of the special debts of the testator. Sauer v. Griffin, 67 Mo. 657.HITCHCOCK, MADILL & FINKELNBURG, for the respondent: The partition of lands among the heirs or devisees before final settlement does not withdraw them from the reach of the administrator, for the payment of debts. Rev. Stat., sect. 146, et seq.; Shaw v. Nicholay, 30 Mo. 107; Carson v. Walker, 16 Mo. 87; Walker v. Deaver, 79 Mo. 673-4. The two years limitation under the administration law has no application to a case of this kind, where the demand did not accrue until after the lapse of two years. Chambers v. Smith, 23 Mo. 174. To the same effect are: Miller v. Woodward, 8 Mo. 169; Benton v. Rutherford, 49 Mo. 258; Finney v. The State, 9 Mo. 227; Sauer v. Griffin, 67 Mo. 654; Garesche v. Lewis, 15 Mo. App. 565, 570; Sturgeon v. Beckwith, cited in Metcalf v. Smith, 40 Mo. 575; Royce v. Burrell, 12 Mass. 395; Tenney v. Lasley, 80 Mo. 664.

THOMPSON, J., delivered the opinion of the court.

This action was brought under section 191, Revised Statutes, to establish in the circuit court a demand against the estate of Isaac Walker, deceased. The demand sought to be established is the payment by the plaintiff of two installments of money to a dowress, the same being installments of an annuity charged by a judgment of the St. Louis land court, in 1864, upon land conveyed by the defendant's testator, Isaac Walker, deceased, to the plaintiff, in the year 1857, with covenants of warranty. In other words, the action is for damages for the breach of a covenant of warranty against encumbrances. Although such a covenantis technically broken at the time of the delivery of the deed, the substantial cause of action arises when the covenantee is compelled to pay money in order to discharge an encumbrance and prevent an eviction. Until that time, he can recover nominal damages only. That was settled in Walker v. Deaver (79 Mo. 664), which was a decision upon the precise covenant of warranty against encumbrances, which is the subject of the present action, and which is, therefore, in a peculiar sense, the law of this case.

Such being the nature of this action, the answer interposes two defences: 1. The statute of limitation of two years, contained in the administration law (sect. 185, Rev. Stat.), prescribing the time within which claims must be presented for allowance against estates of deceased persons. 2. The legal impossibility of enforcing the demand, the estate being settled and partition of the realty having been made among the devisees. Neither of these defences is available.

I. It is well settled that this statute of limitation applies only to demands which are capable of being presented for allowance within two years of the date of the letters of administration where the statutory notice has been duly published by the administrator. Chambers v. Smith, 23 Mo. 174; Tenney v. Lasley, 80 Mo. 664. The demand in this case could not have been so presented. It did not...