13 Mo. App. 29 | Mo. Ct. App. | 1882
delivered the opinion of the court.
This was an application by a creditor of the estate of J. B. Carson, deceased, for an order of sale of realty. The probate court denied the application, and ordered that the petition be dismissed. The petitioner appealed to the circuit court. On hearing anew in that court, the prayer of the petitioner was refused.
It is contended that the action of the probate court shows no final order from which an appeal would lie. The refusal of the probate court to make the preliminary order applied for, would seem to be a final disposition of the matter, so far as that court was concerned. There could be no order -of sale without an order of publication. The statute gives an appeal “ in all cases where there shall be a final decision of any matter arising under the provision of the chapter ’ ’ on administration. It also gives an appeal “ on all orders for the sale of real estate.” It is not to be supposed that the legislature gave an appeal from an order of sale, and withheld it from an order necessarily fatal to an application ¡for sale. The right of appeal is covered by the sweeping language of the fifteenth subdivision of section 292 of the Bevised Statutes, set out above.
“ John B. Carson’s estate, Dr. to William F. Ferguson. April 19, 1879. To cash paid judgment rendered by the St. Louis Circuit Court, March 30,1874, against said estate, and in favor of Robert P. Ober et al., and appealed by James O. Carson, administrator of John B. Carson, to the supreme court of Missouri, and from said court he appealed to the supreme court of the United States, and classified March 2, 1879, in the St. Louis Probate Court. The said William F. Ferguson was security on said appeal-bond to the supreme court of the United States.
$6,649 42
Interest on same. 39 74
$6,749 16 ”
Defendants objected to the introduction of these allowances. To the first, they objected that it was not the allowance upon which the application was based; to the second, they objected that it was for a demand that arose after John B. Carson’s death. The report of the administrator, with account of his administration, list of debts unpaid, and of real estate, were all in evidence and will be noticed more fully in the course of the opinion.
Upon this state of facts, we are of opinion that there is nothing to show any payment of the allowance in favor of Jamison, of which Ferguson appears to be the beneficial owner, and that the allowance afterwards made in favor of Ferguson, was one which the probate court had no power to make, the claim being upon its face one that originated since the death of John B. Carson. The probate court has no power to allow claims against a decedent’s estate, or to order the sale of land belonging thereto, except for the payment of debts of the deceased, in existence at the date of his death. Presbyterian Church v. McElhinney, 61 Mo. 542; Garnett v. Carson, 11 Mo. App. 290.
The evidence is uncontradicted that Ferguson bought the judgment, and that he did not intend to pay it, and did not pay it. Respondent contends that, Ferguson being surety upon the appeal-bond, the attempt to purchase the
At law, the payment of a judgment to the plaintiff by one of several co-defendants, operated an extinguishment of the judgment; and an assignment to one of several co-defendants worked the same result. But the equity rule was, that a surety paying a judgment rendered against himself and his principal, and taking an assignment to himself, did not thereby satisfy or extinguish the judgment against the principal. Goodyear v. Watson, 14 Barb. 481; McDougal v. Daugherty, 14 Ga. 674. The legal principle that payment of the judgment by any one of the parties bound by it extinguishes the judgment and leaves nothing to assign, may seem to create a logical difficulty in the way of the interference of equity to compel an assignment of the judgment to the surety who is co-defendant and who pays the judgment. But, however that may be, no mere technical difficulty in this matter has been allowed, in America at least, to defeat the ends of justice. Courts of equity have always looked to the real nature of the transaction, and have subrogated the defendant who was a mere surety to the rights of the judgment creditor, where the surety has paid the judgment.
In the present case, it is evident that the transaction between the creditor and Jamison acting for Ferguson, was not intended to be a payment, but a purchase of the judgment ; and the thin'g was done as it was done to avoid all appearance of a payment. Ferguson was not a co-defendant in the judgment. He was neither a party to it nor a privy. By virtue of his contract of suretyship, he was bound to satisfy the judgment creditor; but we see no reason why, in doing so, he must necessarily satisfy the judgment itself, and lose all recourse against the estate. We think that the money advanced by Ferguson, through Jami-son, to the holder of the demand, though it was the money
The statute provides that, if the administrator does not make application for the sale of realty, any creditor or other person interested in the estate may make such application, giving twenty days’ notice to the administrator. Eev. Stats., sect. 150. There can be no doubt, we think, that Jamison having purchased this allowance for Ferguson, and with Ferguson’s money, Ferguson was a person interested in the estate within the meaning of this section.
But it is said that the application is bad because the notice attached to it describes, riot the valid allowance assigned by Glover, but the subsequent void allowance in favor of Ferguson. We see no force in this objection. If the personal estate was insufficient to pay debts, and there was existing an unsatisfied allowed demand against the estate, and the applicant was a «creditor or person interested in the estate, the application should not be denied merely because in the notice to the administrator he misdescribes his allowed demand. That is wholly immaterial. It is the administrator’s business to know what demands have been allowed against the estate, and the court may order a sale of realty of its own motion, if, upon settlement, it appears that the personalty is insufficient to pay the debts. Eev. Stats., sect. 170.
The lists and exhibits of the administrator in evidence show an unpaid demand in favor of one Garnett for $214.33, in addition to the Ober judgment classified for $5,114.92.
In the administrator’s account, he charges himself with
It appears that, after striking out the credits for amounts paid for legacies, and also striking out the charge for the moneys received from this sale made by James O. Carson and his sister, there was not, according to the lists and exhibits of the administrator, sufficient personalty to pay the debts. And we see no sufficient reason why the application for an order of publication was denied.
The judgment is reversed and the cause remanded.