— The appellant complains of the action of the court in giving and refusing instructions. Defendant’s instructions Nos. 3, 4, 6, 7, 9 and 11 were properly refused because they only contained abstract propositions of law. The court gave instructions Nos. 1, 2, 3 and 4 for plaintiff.
Plaintiff’s first instruction is to the effect that under the pleading and evidence the verdict and finding must be for the plaintiff for the full amount sued for. The second instruction reads as follows: “That under the law of this State the ad-ministratrix is the trustee of and representative of all the creditors, and as such it is her duty to defend against and resist any and all illegal claims against the estate of the deceased, and probate and preserve the estate of the deceased,
Number 1 was a peremptory instruction to find for the plaintiff and Nos. 2 and 3 and 4 were given, it is presumed, for the purpose of indicating the theory upon which the finding is founded. The defendant after the proper effort to have the finding of the court set aside, brings the case here by appeal.
The plaintiff tried her case upon the theory that the mortgage mentioned was void as to creditors, and that it was her duty to contest its validity in their behalf. It can not be seriously denied that, the failure to record the mortgage in the county where the mortgagor resided rendered the same void as to creditors (R. S. 1899, section 3404, and many decisions of the Appellate and Supreme Courts of the State). And the facts that the mortgagee permitted the mortgagor to retain possession of the mortgaged property, to sell the same in the usual course of business, and to apply the proceeds to his own use, rendered the mortgage void as to creditors and purchasers. R. S. 1899, sec. 33.97; Barton v. Sitlington, 128 Mo. 164; Rock Island Bank v. Powers, 134 Mo. 432; Mfg. Co. v. Supply Co., 149 Mo. 538. However, it is admitted by both par
But the plaintiff claims that it is not good as against the administratrix because of the fact that the estate of the' mortgagor is indebted, and that therefore the judgment of the circuit court was for the right party. The question of-the solvency of the estate of deceased is not taken into consideration, but the proposition is broadly assumed that the administratrix represents the creditors, and where there are creditors the administrator of the deceased can impeach his acts on the ground of fraud. To support this theory we are cited to the case of Hughes v. Menefee, 29 Mo. App. 192. That case does not sustain respondent for the reason that the contract sought to be enforced was not only void in law as against creditors, but the estate of the deceased was insolvent and the creditors were in court by their lawyers asking that it be not enforced. The language of Judge Ei/lisoN, who delivered the opinion of the court, in speaking of the case, was: “This is not a contest between the parties to the agreement, for while the administrators are the representatives of the deceased, they are also trustees for the creditors.” In this, he spoke with reference to the facts of that particular case, wherein, further illustrating his position, he says: “If this judgment is sustained it is at the expense of the general creditors. If the estate was solvent and the rights of third parties did not intervene, a verbal agreement for a mortgage of personal property could be upheld.” It seems rather to be the opinion of the court in that case, that notwithstanding the administrator is held to be a trustee for the creditors, a contract void as to creditors may be enforced against the administrator where the estate is solvent and the rights of third parties do not intervene.
In Jones on Chattel Mortgages, sections 239 and 240, the rulings of different courts are summarized thus: “An unfiled or unrecorded mortgage is valid against the executor or administrator of the mortgagor in the same way that it is valid
At most, under the authorities and sound reason, the estate of the mortgagor upon his death passing to his administrator as he left it, the administrator has no authority to change the status of the property except under peculiar circumstances; for instance, as we have seen, to protect tire rights of creditors as against fraudulent liens where the estate is insolvent. In this case, however, the court declared the law, in instructions Nos. 1, 2, 3 and 4, -given for respondent, to be that the mortgage in question being void as to creditors was void as to the administratrix also. This was error. At most, it was only void as to the administi’atrix in case the estate in her hands was insufficient to pay debts. This view of the 'ease was entirely eliminated from said instructions.
But the case must be reversed upon another ground.
It could make no difference in this suit whether the estate of the decedent was solvent or insolvent, the plaintiff was not entitled to recover the full purchase price if the contract in suit was as stated by the defendant in his answer and supported by
Other questions raised in the briefs and arguments before this court, in view of the holding of this opinion, become immaterial and will not be noticed. Judgment reversed and cause remanded.