Tolle v. Boeckeler
| Decision Date | 04 April 1882 |
| Citation | 12 Mo.App. 54 |
| Parties | MARGARET TOLLE, EXECUTRIX, Appellant, v. ADOLPHUS BOECKELER, Respondent. |
| Court | Missouri Court of Appeals |
1. A fund set apart by a debtor to indemnify his surety, will, when the surety's liability becomes fixed, be applied, by a court of equity, to the payment of the debt.
2. In the case of several sureties no part of the fund thus set apart can be diverted to the payment of the general creditors of either, until the entire liability shall have been paid.
3. As between several sureties, an indemnity against liability as surety, obtained by one, inures to the benefit of, and will be held in trust for, all.
4. After the liability has become fixed, the execution and delivery, to the creditor by each of three sureties, of a note indorsed by the others for one-third of the gross liability, has not the effect, in equity, of limiting the sureties' liability.
5. Held, that after the cause had been submitted, the trial court did not abuse its discretion in refusing to permit the plaintiff, executrix of one of the sureties, to file her individual interplea in which she claimed to have made a part payment of her testator's liability out of her separate estate.
6. Held, further, that, not being entitled to any part of the fund in controversy, she could not challenge the allowance of an attorney's fee, to the trustee of the fund, for defending the suit.
APPEAL from the St. Louis Circuit Court, BOYLE, J.
Affirmed.
W. B. THOMPSON, for the appellant: The acceptance of the notes by the heirs and distributees of Brand, in settlement of the liability of the sureties on the bond of Barth, discharged the sureties on the bond, and there could be no recovery thereafter on the bond.-- Hunery v. Marksberry. 57 Mo. 399; The State v. Manning, 55 Mo. 142; Horen v. Rowley, 57 Mo. 357; Newcomb v. Blakely, 1 Mo. App. 289. The evidence of the German consul was incompetent after the agreement read in evidence, such agreement being conceded by both sides to be the contract between the sureties who delivered the notes, and the agreement was not subject to parol evidence.-- Marpenter v. Jamison, 6 Mo. App. 216. Schulenburg cannot retain the one-fourth interest unless the same is applied in extinguishment of the note, and such should be the decree, otherwise Tolle's estate will pay of Schaeffer's liability the amount of this note, and be deprived of a right which in equity belongs to sureties, namely, to be subrogated to the rights of the creditor to all security in favor of such creditor. In other words, Schulenburg would obtain a security for his own use and benefit in which Tolle is interested equally.-- Wilcox v. Todd, 64 Mo. 388. The principles of equity in this case being so well settled, the appellant has not cited the numerous authorities existing which define the relation between debtor and creditor, and principal and surety.-- Haden v. Foley, 18 Mo. 136; Brandt on Surety., sect. 282; Chellone v. Chapman, 13 Mo. 470; Story's Eq. Jur., sect. 499.
LOUIS GOTTSCHALK, for the respondent, cites: Wilcox v. Todd, 64 Mo. 388; Wright v. Austin, 56 Barb. 13; Brandt on Surety., sects. 282-284; In re Baldwin, 8 Cent. L. J. 186.
The facts of this case are somewhat complicated with detail; but when they are understood, it will be seen that the question involved lies in a small compass, and is entirely free from doubt.
On the thirty-first day of August, 1875, Robert Barth, now deceased, was executor of the estate of Bernard H. Brand, deceased. The sureties on his bond as such executor were John F. Tolle, who was the plaintiff's testator, Nicholas Schaeffer, since deceased, Frederick Schulenburg, Felix Coste, and Louis C. Hirschberg. Three of these sureties--namely, Schulenburg, Tolle, and Schaeffer--were supposed to be solvent at this time, and the other two, Coste and Hirschberg, were known to be insolvent. Barth had wasted the assets of the estate of which he was the executor; was indebted to it in a large amount beyond his ability to pay; and it was known that his solvent sureties would have to make good this deficit. He was also indebted to the defendant Boeckeler for moneys which the latter had advanced to him. He was the owner of and beneficiary in a policy of insurance which had been issued upon his life for the sum of $10,000, by the Mutual Life Insurance Company of New York. For the purpose of securing to Boeckeler what he thus owed him, and also of indemnifying his solvent sureties, so far as he could, against the amount which they would have to pay on account of his indebtedness to the Brand estate, he executed an assignment of this policy of insurance in trust to Boeckeler, accompanied with the direction that when the amount thereby secured should be collected, Boeckeler should have one-fourth of it, and that Schulenburg, Tolle, and Schaeffer should each have one-fourth.
This assignment was in the following language:--
“For one dollar to me in hand paid, and for other valuable considerations (the receipt of which is hereby acknowledged), I hereby assign, transfer, and set over all my right, title, and interest in this policy, No. 144, 558, issued by the Mutual Life Insurance Company of New York, to Adolphus Boeckeler, trustee, of St. Louis, Missouri; and for the consideration above expressed, I do also for myself, my executors, and administrators, guarantee the validity and sufficiency of the foregoing assignment to the above-named assignee, his executors, administrators, and assigns, and their title to the said policy will forever warrant and defend.
Dated in St. Louis, Missouri, this thirty-first day of August, 1875.
ROBERT BARTH.”
It is admitted in the pleadings that the assignment was made upon the trusts above stated.
On the 30th of April, 1879, Barth died insolvent. He had made his settlement in the probate court as executor of the estate of Brand, and, at the time of his death, stood indebted to the distributees of that estate to an aggregate amount of more than $50,000, which amount his solvent sureties, Schulenburg, Schaeffer, and Tolle, stood liable to pay.
Dr. Gerlich, the imperial German consul at St. Louis, was the agent and attorney in fact, of the distributees of the Brand estate. After the amount which the solvent sureties of Barth would have to make good had been ascertained by the settlement of Barth in the probate court, these sureties entered into an arrangement with Dr. Gerlich, as attorney in fact of the Brand heirs, by which the amount for which the sureties stood liable was liquidated by the giving of eighteen promissory notes for $2,750 each, amounting in the aggregate to the sum of $49,500. These notes were so drawn as to express the amount which each surety, as between the sureties themselves, stood liable to pay, and so as, at the same time, to preserve the joint and several liability of all the sureties for the whole amount. Thus, six of the notes were executed by Schulenburg, and indorsed by Schaeffer and Tolle; six of them were executed by Schaeffer, and indorsed by Schulenburg and Tolle; and six of them were executed by Tolle, and indorsed by Schulenburg and Schaeffer. These notes were all dated on the 15th of October, 1877. The notes of each series matured respectively in six, twelve, eighteen, twenty-four, thirty, and thirty-six months, and each of them bore interest at the rate of six per cent per annum from its date. These notes were delivered to Dr. Gerlich by the makers of them respectively, and he gave to each a receipt, of which the following, which was given to Tolle, is a specimen:--
“In the matter of the estate of Henry Brand, I have this day received from Mr. J. F. Tolle, of this place, as surety of the insolvent executor, Robert Barth, the following notes to cover that part of the estate, which, according to the present condition of things, he is to make good, amounting to $16,500, besides interest at six per cent from October 15, 1877:--
$2,750, payable April 15, 1878, with interest at 6% from October 15, 1877.
$2,750, payable October 15, 1878, with interest at 6% from October 15, 1877.
$2,750, payable April 15, 1879, with interest at 6% from October 15, 1877.
$2,750, payable October 15, 1879, with interest at 6% from October 15, 1877.
$2,750, payable April 15, 1880, with interest at 6% from October 15, 1877.
$2,750, payable October 15, 1880, with interest at 6% from October 15, 1877.
Each of these notes is indorsed by N. Schaeffer and F. Schulenburg, in order to substantiate the total liability of the gentlemen named. In order to secure the parties in interest against a possible loss of the notes, and as these notes are to remain at the imperial consulate at St. Louis until their maturity, and are to be presented by him in person for payment; therefore, Mr. Tolle is respectfully requested to make payment of each matured note only upon receipt of the imperial German consul, to be made on the note itself.
ST. LOUIS, January 23, 1878.
The Imperial German Consul,
GERLICH.”
Dr. Gerlich testified, at the hearing of this cause, without objection, that he did not accept these notes in satisfaction of the liability of the parties to them as sureties of Barth, but that, on the contrary, it was expressly understood between him and them that the notes were not taken, and were not to be, in satisfaction or payment of the bond on which they were liable as sureties.
These notes have been paid as follows: Schulenburg has paid the six which were made by him; Schaeffer, before his death, paid two of those which were made by him; Tolle, before his death, paid the first two which were made by him. It is claimed, as we shall see hereafter, that Mrs. Tolle paid the second one out of her estate, but there is no competent evidence to show this, though she proved it up as a claim in her own favor against her deceased husband's estate. The remaining four were allowed as claims against his estate, by the probate court, in favor of the...
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