39 Mo. 272 | Mo. | 1866
delivered the opinion of the court.
The petition of the appellants (plaintiffs below) shows that they were the owners of two distributive shares of the estate of Richard Phillips, deceased ; that Hale had purchased the share of Eliza Robinson, wife of Joseph Robinson, deceased, and that his co-plaintiff (Miller) had acquired the share of Thomas Phillips, the said Eliza and Thomas being heirs-at-law of the said Richard Phillips, deceased. An order was asked to restrain the defendant Meegan from selling as trustee certain property conveyed to him in trust for the benefit of his co-defendant McAllister by the said Thomas Phillips, Joseph Robinson and wife, together with Robert Phillips, another one of the distributees of said estate.
It charged that Richard Phillips died at the city of St. Louis, in the year 1857, seized and possessed of an estate amounting in value to about $40,000, including among other things a steamboat called Flying Cloud; that shortly thereafter McAllister became the administrator of said estate, and in pursuance of an order of the St. Louis Probate Court sold said'boat at private sale for the sum of $15,000 — Joseph Robinson, Thomas and Robert Phillips being the purchasers;, of this amount $2,000 was paid in cash, and five joint notes' executed for the remainder, to secure which a deed of trust was executed by the said parties conveying the said boat and tackle to one Burke, as trustee for the benefit of McAllister ; that shortly thereafter there was paid on said notes the sum of $8,900 in cash, and that McAllister by false and fraudulent representations and threats obtained additional security, to-wit, the conveyance to said Meegan in trust of all their several interests in the estate of Richard Phillips, deceased.
Plaintiffs alleged that the assets of the estate were not properly accounted for by McAllister; that a correct settlement of his accoixnts with the estate would show that these notes executed by the said parties for the said steamboat in the year 1857 had been- fully paid off and discharged, and requiring him to account, &o.
The answers of defendants were separate. Meegan denied any connection with the whole matter except as trustee, and McAllister denied all the allegations of fraud or improper conduct upon his part, denied that the sale at which he became the purchaser of the boat was private, or that he bought as the administrator of the estate of Richard Phillips, and that he had received the amounts charged to have been collected by him on the policy of insurance or the average bonds.
A motion was made by the defendants to dissolve the injunction, upon the trial of which there was an investigation of all the facts in the case, upon which it was determined by the Court that at the sale made by Burke in the month of Decern-
The exceptions taken to the report of the referee being heard and considered by the court were overruled, and the motion to dissolve the injunction sustained. The bill was then dismissed and an assessment of damages made by the court; all of which being properly excepted to by the plaintiffs below, the case is brought to this court by appeal.
There is no ground, so far as the testimony presented in the bill of exceptions shows for the conclusion, that McAllis-ter’s purchase of the boat at the trustee’s sale in December, 1858, was “in trust for the creditors and distributees of the estate of Richard Phillips.” No testimony tending to prove that fact has been found; on the contrary, it appears that he had undertaken to become personally responsible to the estate for the whole amount agreed to be paid for the boat by Robinson, Thomas and Robert Phillips, by actually charging himself with it upon his settlement in the Probate Court. The deed of trust had been taken for his benefit and not the estate. The sale was shown to have been made publicly, as directed by the terms of the deed-. The fact of its being struck off to McAllister for the sum of $1,000 is explained by showing that there was at the time lien debts against the
However, the brief of the appellants’ counsel presents but three points for the consideration of this court. First,'that Meegan was incompetent to testify on behalf of his co-defendant McAllister. By the act approved February 12, 1857, “a party may be examined as a witness in behalf of his co-plaintiff or of a co-defendant as to any matter in which he is not jointly interested or liable with such co-plaintiff or co-defendant, and as to which a separate and not joint verdict or judgment can be rendered. (Sess. Acts 1856-7, p. 81.) Meegan could only be regarded as a nominal party, without any interest that could affect his competency, and was properly admitted to testify.
The second error complained of, being the refusal of the court to sustain the exceptions to the report of the referee, need not be noticed for the reasons expressed heretofore in relation to the order of the court making the reference. The action of the referee seems to have been mainly in conformity to the order and with the views entertained by the court below in reference to the necessity of having an account stated. It was proper that it should be sustained.
The third and last point is that the Circuit Court committed error in the assessment of damages. In the case of the City and County of St. Louis v. Alexander, 23 Mo. 483, this court undertook to give a construction to the statute which authorizes an assessment of damages in these cases. (R. C.
It is urged that the allowance of the sum of $1,000 as an attorney’s fee was improper, for the reason that it constituted no part of the damages that could be legally assessed in such cases. The evidence upon which the allowance was made is not preserved in the bill of exceptions, if any was taken. But in any event the whole matter was within the knowledge of the court, and, a trial by jury being waived by the parties, we do not feel at liberty to inquire into the reasons whicfi controlled the court in making the allowance, b.ut must conclude they were sufficient.
The judgment will be affirmed.