West v. Brison

• Decision Date: 24 February 1890
• Parties: West, Public Administrator, Appellant, v. Brison, Administratrix
• Court: Missouri Supreme Court

13 S.W. 95

99 Mo. 684

West, Public Administrator, Appellant, v. Brison, Administratrix

Supreme Court of Missouri

February 24, 1890

Appeal from Cass Circuit Court. -- Hon. D. A. DeArmond, Judge.

Affirmed.

Wooldridge & Daniel for appellant.

(1) The court erred in refusing instruction number 4, asked by the plaintiff. The powers of an administrator are derived from the statute, and he holds the personalty of the estate in auter droit, and as trustee. It is his duty to collect the debts due the estate, and discharge its liabilities. The power to make a voluntary release of a debt or of a surety is inconsistent with his statutory duty to collect the debts due the estate, pay the demands allowed against the estate, and distribute residue among those entitled to it. R. S., sec 94; Schouler's Ex'rs and Adm'rs, sec. 242; Lessing v. Vertrees, 32 Mo. 431; Mossman v Bender, 80 Mo. 584; Chandler v. Stevenson, 68 Mo. 450. (2) He cannot even compound with an insolvent debtor and give him a discharge on receiving a fair proportion of the debt, without the approbation of the judge of probate. Much less can he voluntarily release a debtor. R. S., sec 242. (3) There was no release under seal, or in writing, of any surety in the judgment, and no consideration whatever for such release; and a mere parol release of a surety, if any such were made, had nothing on which to rest, and did not discharge him. Goodman v. Griffin, 3 Stew. (Ala.) 160; Miller v. Knight, 6 Baxt. (Tenn.) 503. (4) A levy of execution on real estate is not a satisfaction or release of the judgment. Freeman on Judgments [1 Ed.] sec. 474; Taylor v. Ranney, 4 Hill, 619; Reynold v. Rogers, 5 Ohio 169, 173-4, and cases cited; United States v. Dasheil, 3 Wall. 688 ; Freeman on Executions, sec. 282. (5) The court erred in the instruction given of its own motion. The real estate owned by the principals, included in the supposed levy, was either sold and the proceeds applied on this judgment, or it was embraced and included, together with a large amount of land of said principals and of other parties not in said levy, in the deed of trust given by the principals and others to secure the judgment. Before the lien of the judgment expired the deed of trust was executed. The defendant's intestate was not injured, but rather benefited thereby. Brandt on Sur. & Guar., sec. 380, and cases cited. (6) The taking of the deed of trust by the administrator, as it did not extend the time of payment, did not release the sureties. Brandt on Suretyship, sec. 320; Ins. Co. v. Carson, 31 Mo. 218; Morgan v. Martien, 32 Mo. 438; Noll v. Oberhellman, 20 Mo.App. 336; United States v. Hodge, 6 Howard [12 L. Ed.] 279, 437. (7) A parol agreement for extension of time of payment, not founded on a good consideration, and not extending time of payment of the debt for a definite time, is not binding and does not release the surety. Ins. Co. v. Carson, supra; Headlee v. Jones, 43 Mo. 235; Rucker v. Robinson, 38 Mo. 154; Hosea v. Rowley, 57 Mo. 357; Michael Boring's Appeal, 9 Cent. Rep. [Pa.] 394; United States v. Hodge, supra; 20 Cent. Law Journal, 183. (8) Mere delay or promise of delay for an indefinite period of time, or agreement to look only to principals for payment, or parol promise, if any, to release sureties without consideration therefor, will not discharge sureties from liability. 1 Story Eq. Jur. [9 Ed.] sec. 326, chap. 7, p. 315; 29 Cent. Law Jour., supra.

W. J. Terrell and Railey & Burney for respondent.

(1) The judgment sued upon had been fully paid by the principals therein, and no cause of action existed against defendant. (2) By releasing property, sufficient in value to pay the debt, which had been levied upon by the sheriff under execution, and ordering return thereof unsatisfied, the administrator released and discharged the securities. Semple v. Atkinson, 64 Mo. 504; Lower v. Bank, 78 Mo. 67; Priest v. Watson, 75 Mo. 310; Bank v. Matson, 24 Mo. 333; Stillwell v. Aaron, 69 Mo. 539. (3) The extension of time of payment to the principals in said judgment, without the knowledge and consent of the securities, had the effect of discharging the latter. Williams v. Jenson, 75 Mo. 681; Ins. Co. v. Hauck, 83 Mo. 21; Ins. Co. v. Hauck, 71 Mo. 465; Stillwell v. Aaron, 69 Mo. 539. (4) The execution of the deed of trust, whereby property not subject to execution was made liable to the payment of the debt, is a good consideration for the extension of time, and such agreement will discharge the securities. Semple v. Atkinson, 64 Mo. 504; Bank v. Leavitt, 65 Mo. 562; Chambers v. Cochran, 18 Ia. 162. (5) The administrator had power, in the conduct of the business of the estate, to perform such acts as would discharge the securities. Semple v. Atkinson, 64 Mo. 504; Herman on Estoppel and Res Adjudicata, sec. 1125; American and Eng. Cyclopedia of Law (bottom p.) 284; Wood v. Tunnicliff, 74 N.Y. 40; North v. Walker, 2 Mo.App. 174; Smarr v. McMaster, 38 Mo. 349; North v. Walker, 66 Mo. 453; Wilkes v. Black, 4 S.W. 767; Ward v. Brown, 87 Mo. 468; Bliss v. Pritchard, 67 Mo. 181. (6) The instruction of the court numbered one properly declares the law. Dodd v. Winn, 27 Mo. 501; Rice v. Morton, 19 Mo. 263. (7) The relation of principal and surety is not changed by placing the debt in judgment. Freeman on Judg. 226; Dodd v. Winn, 27 Mo. 501; Rice v. Morton, 19 Mo. 263; Chambers v. Cochran, 18 Ia. 162. (8) The administrator declared to defendants intestate, in his lifetime, that he was released from liability, and this declaration, with the other circumstances, amounts to a discharge. Brandt on Suretyship, sec. 211; Harris v. Brooks, 21 Pick. 195; Thornburg v. Madren, 33 Ia. 380. (9) This court will not interfere with the verdict of a jury if there is any substantial evidence to enable the jury to find such verdict. Baker v. Stonebraker, 36 Mo. 338; Price v. Evans, 49 Mo. 396; Spohn v. Railroad, 87 Mo. 84; State v. Preston, 77 Mo. 294.

OPINION

Black, J.

-- On May 7, 1872, letters of administration were issued upon the estate of James R. Cline to his widow, Nettie Cline, and her father, James Blair, Jr.; and they gave bond in the sum of thirty-five thousand dollars for the performance of their duties, with James Blair, Sr., William T. Brison, J. C. and A. H. Boggs and G. W. Feely as sureties. The letters of administration were revoked in May, 1873, and the estate ordered into the hands of Newton P. Brooks, public administrator of Cass county. On September 6, 1873, Brooks, as such administrator, recovered a judgment against the former administrator and administratrix, and the sureties on their bond, in the sum of $ 10,611.40. Brooks died in 1879, and Cummings was appointed administrator of the Cline estate, but he died before he entered upon the discharge of his duties, and in February, 1880, the Cline estate was ordered into the hands of the present plaintiff, public administrator.

William T. Brison, one of the sureties of Cline and Blair, Jr., died in 1885, and Lucy H. Brison is the administratrix of his estate. In the year, last mentioned, the plaintiff presented the judgment, before mentioned, for allowance against the Brison estate, and the probate court allowed the demand in the sum of thirty-five hundred and seventeen dollars, and the defendant appealed. A trial anew in the circuit court resulted in a judgment for defendant and the plaintiff appealed to this court.

The defenses set up to the demand are, first, payment; and, second, that Brison, as a surety on the bond, was released and discharged from all liability by Brooks, the former administrator de bonis non.

The further facts disclosed by the evidence are in substance as follows: An execution was issued upon the judgment against Cline and Blair, Jr., and their sureties on September 9, 1873, and levied upon real estate of the principals and sureties of a value more than sufficient to pay the judgment. This execution was returned not satisfied and without a sale on the twenty-third of January, 1874, by order of Brooks, the plaintiff therein. On the sixth day of September, 1876, one day before the judgment lien expired, Nettie Cline and Blair, Jr., being joined by the widow of James Blair, Sr., executed to Brooks, administrator de bonis non of the Cline estate, a deed of trust to secure the balance then due upon the judgment. This deed of trust included the property of the principal debtors, which had been levied upon, except one parcel which had been sold and the proceeds applied on the judgment, and also property belonging to them not covered by the lien of the judgment. There was also included therein the property known as the Blair hotel in Harrisonville, which belonged to James Blair, Sr. A recital in the deed of trust states that $ 7,752.40 had been paid on the judgment. The annual settlement of Brooks as administrator, made in April, 1878, more than a year and a half after the date of the deed of trust, shows a payment to him by Blair, Jr., in allowed demands procured and turned over to Brooks in the sum of $ 3,486.59. Defendant insists that this payment was additional to that recited in the deed of trust, and plaintiff contends that it was a part thereof. The settlement of Brooks filed in 1879 shows a further payment of $ 1,562.45. In 1882, and after the death of Brooks, the present plaintiff caused the property in the deed of trust to be sold, the sale producing only the sum of $ 2,384.

The evidence shows that Blair, Jr., acting for himself and Mrs Cline, had frequent interviews with Brooks from and after the levy of the execution in 1873, with a view of saving the sureties; and the evidence tends to show that Brooks agreed to give these principal debtors time to pay off the debts of the Cline estate, and to take the receipts of Mrs....