Young v. Wells

• Decision Date: 31 October 1862
• Parties: WM. YOUNG, ADMINISTRATOR OF CHARLES CHEELY, Plaintiff in Error, v. DAVID B. WELLS et al., Defendants in Error.
• Court: Missouri Supreme Court

33 Mo. 106

WM. YOUNG, ADMINISTRATOR OF CHARLES CHEELY, Plaintiff in Error,

v.DAVID B. WELLS et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1862.

Error to St. Charles Circuit Court.

Lewis & Alexander, for plaintiff in error.

I. Two questions only were raised by the demurrer, viz: 1st, Was there a defect of parties plaintiff? and 2d, did the petition state facts sufficient to constitute a cause of action? (R. C. 1855, p. 1231, § 6, 10.)

The objection of multifariousness and of misjoinder of defendants were therefore waived by defendants, and cannot now be set up to sustain the action of the Circuit Court. (See 5th & 7th clauses of § 6, above cited; also § 10.) The defects complained of, if they exist at all, are apparent on the face of the petition, and therefore could not have been reserved for the answer.

II. There is no defect of parties plaintiff, the administrator of Cheely being the only person who could sue upon the demand here asserted.

III. The petition contains facts sufficient to constitute a cause of action.

There is no legal requirement for plaintiff to have his claim allowed in a court of probate before instituting suit in the Circuit Court. (R. C. 1855, p. 153, § 8.)

If, however, it should be deemed proper for this court to notice any alleged misjoinder of defendants or of causes of action, and such should be found really to exist, it is submitted that a reversal upon the grounds above presented will enable the plaintiff to elect as to which cause of action he will proceed upon, and thus avoid a deprivation of his remedy. (See Doan v. Holly, 25 Mo. 357-360.)

W. A. Alexander, for defendants in error.

I. The court did not err in sustaining the demurrer. There is a misjoinder of parties. The petition is multifarious.

Plaintiff asks judgment against the defendants for money paid by him as administrator of Cheely, on a debt of C. H. Wells, and shows no indebtedness from defendants, D. B. Wells and Sarah Patchett, to plaintiff; and also asks that lands conveyed by Jenkins to D. B. Wells and by him to defendant Patchett, be subjected to the payment of an alleged debt against C. H. Wells' estate.

A suit asking a judgment for debt is of one class of action, and a suit attacking deeds, asking their cancellation and that lands be subjected to the payment of debts, is of another class of action, and they cannot be joined.

There being no indebtedness alleged or shown from defendants, D. B. Wells and Sarah Patchett, they were improperly joined with C. H. Wells' administrator as defendants. (See McLaughlin v. McLaughlin's adm'r, 16 Mo. 243; Doan v. Holly, 25 Mo. 357, & 26 Mo. 186; Stalcup v. Garner, 26 Mo. 72.)

Can an administrator bring and maintain a suit attacking the conveyance of land on the ground of fraud? The administrator of C. H. Wells is not a proper party to a suit asking lands to be made subject to the payment of debts of Wells' estate, when said estate claims no interest in such lands. The proper party defendant is the purchaser and owner of the land.

II. The demurrer was properly sustained because of the misjoinder of parties defendant; because of the improper uniting of different classes as well as causes of action;

because D. B. Wells and Sarah Patchett were not necessary parties to a suit for the debt, and C. H. Wells' administrator was not a necessary party to a suit for lands which do not belong to his estate, and because the petition does not show a cause of action against the defendants.

BATES, Judge, delivered the opinion of the court.

Demurrer to the petition was sustained and judgment entered upon it; to reverse which, the plaintiff brings the cause to this court by writ of error.

The petition alleged that Charles H. Wells, as principal, and Charles Cheely, as security, made a promissory note. That both Wells and Cheely died, and plaintiff is administrator of Cheely's estate; that the note was allowed as a demand against both estates; that a small portion thereof was paid by the estate of Wells, and a larger sum by the plaintiff, as administrator of Cheely's estate, and that the personal property of the estate of Wells is exhausted, “without leaving any assets with which to pay off” the claim of Cheely's estate. The defendants in this suit are Hinman, administrator of Charles H. Wells, David B. Wells and Sarah Patchett. The petition charges that Charles H. Wells, in his lifetime, and after the maturity of the note...