83 Mo. 376 | Mo. | 1884
This case is before us on plaintiff’s appeal from the action of the circuit court in sustaining a demurrer to his petition and entering judgment thereon. The only question, therefore, presented is the sufficiency of the petition which, in substance, sets forth the following as the cause of action: That one Elisha W. Halleck died intestate in July, 1871, and at the time of his death was the owner in fee of certain lands described in the petition ; that said Halleck in his lifetime being indebted to one Thomas for the purpose of securing said indebtedness in July, 1869, executed a deed of trust in which his wife joined conveying said land to a trustee and empowering him to sell the same in the event of the non-payment of the debt secured by the deed; that after the death of said Halleck one P. W. Trowbridge administered on his estate and continued to act as administrator until April, 1873, when he resigned after making settlement, whereupon plaintiff, Evans, was appointed administrator; that
It appears from the petition that the land of decedent was his homestead and as such descended to his wife and children subject only to the payment of the debt to Thomas secured by the deed of trust. On the above state of facts, plaintiff, having made the wife and children of decedent parties, prayed to be subrogated to the rights of Thomas under the trust deed and for a decree ordering the sale of the land to pay the sum paid by plaintiff to Thomas. The circuit court held, and we think properly, that this could not be done. The facts stated in the petition show that plaintiff voluntarily paid the debt to Thomas with funds which under the law were alone applicable to the payment of debts against the estate which had been allowed and assigned to classes five and six. Such payment was a misappropriation of the fund and, it being voluntarily made, the fact of his being mistaken in the supposition that he had funds of the estate sufficient to justify him in doing so does not entitle him to the relief asked. He must be held to have made it at his own peril. Dullard v. Hardy, 47 Mo. 404; Garesche v. Priest, 78 Mo. 127 ; Brown v. Fagan, 71 Mo. 563.