126 Mo. 404 | Mo. | 1895
— Plaintiff, as administrator of the estate of Horace Moody, presented to the probate court of the city of St. Louis a judgment for classification against the estate of William H. Cozzens. The probate
William H. Cozzens, Alexander Lyle and two other persons were sureties on three bonds given by Isaac Fisher as curator of the estates of Edward Clark, Robert Clark, and Anna Clark, a separate bond being given for each ward. On the twenty-second of March, 1872, Edward Clark obtained judgment on the bond given for his benefit, against Fisher, Lyle and Cozzens for the sum of $2,497. Fisher then owed each of the other wards a like amount, but their claims were never reduced to judgment. Execution was issued on the judgment. While matters stood in this shape, Alexander Lyle, the only then solvent judgment debtor, caused his son, Oscar, to open negotiations with Mr. Babcock, looking to a settlement of the judgment and the claims of the other minors. Babcock was the attorney who obtained the judgment. Alexander Lyle died on the eighth day of May, 1874. A few days before his death he turned over to his wife some notes and also some stock in a corporation, and at the same time gave her directions to settle the claims of the Clarks. On the twenty-sixth of May, 1874, after the death of Alexander Lyle, Oscar Lyle gave Babcock $1,500 in full settlement of the judgment. In making this settlement, he acted as the agent of his mother and used money which she had borrowed for that purpose. There was at that time, and probably prior thereto, an understanding that the claims of Robert and Anna Clark should be settled on like terms. These two claims were settled by Oscar,
The parties produced much other evidence. Some of it tends to show that Mrs. Lyle directed Oscar to procure an assignment of the judgment to her when he paid the $1,500 to Babcock, and that there was then an understanding that Babcock would communicate with his client and procure an assignment of the judgment. On the other hand, there is much evidence tending to show that Oscar Lyle paid the $1,500 in settlement and discharge of the judgment, and that the assignment of it to him was an afterthought.
It appears that Horace Moody died a resident of the state of New York, and his wife administered on his estate there. As such administratrix she executed a writing in 1890, professing to assign the judgment to Cassimir Loring. The defendant read this assignment in evidence, over the objection of the plaintiff.
The court gave the following instruction at the request of the plaintiff:
The following instruction was given by the court of its own motion, being in substance and effect the same as one asked by the plaintiff:
“If it appears from the evidence that Osear E. Lyle was directed, as agent, to purchase the judgment read in evidence, and, in pursuance of his instructions, made negotiations for the purchase of said- judgment with the agent of the plaintiff in said judgment, and paid the sum of money agreed upon with- said agent, and subsequently received from said plaintiff the assignment of said judgment read in evidence, then said assignment vested the legal title of said judgment in said Lyle in trust for his principal, although said agent of plaintiff in said judgment may have supposed that the money paid to him was paid in satisfaction or extinguishment of said judgment.”
1. Some question is made here as to whether the first instruction before set out was given or refused. The bill of exceptions says it was given, though the word “refused” appears on the margin of the instruction. On this state of the record we think the recital in the bill of exceptions that the instruction was given must control.
2. The next inquiry arises out of the action of the court,in admitting in evidence the assignment of the judgment made by the foreign administratrix ' to Cassimir Loring. If the instruction given at the request of the plaintiff excluded this assignment, then he has no ground of complaint. That instruction, it will be
What, then, does it mean? It was conceded by all parties throughout the entire trial that Edward Clark owned the judgment, unless it had been satisfied. The instruction means, and can only mean, this, that the finding should be for the plaintiff, unless the judgment had been satisfied prior to the date of the assignment of it by Edward Clark to Oscar Lyle, The assignment made by the foreign administratrix was therefore in the end excluded, and, this being so, we need not consider the objections made to it when first received in evidence.
3. The defendant administrator had a perfect right to appear in the probate court and plead payment as a defense to the judgment. If paid, it was the plain duty of the court to reject it, though it was a judgment. We find nothing in Wernse v. McPike, 100 Mo. 476, in any way in conflict with what we have just said. To say a paid and satisfied judgment should be classed as a demand against a dead man’s estate is simply absurd, and this court never thought of promulgating any such doctrine.
4. As Alexander Lyle and Cozzens were cojudgment debtors and cosureties, it is insisted that the widow and heirs of Lyle had the right, upon paying
In the next place, the trial court must have found, under the instructions given, that the judgment was paid and satisfied, so that the assignment, made some months thereafter, transferred nothing. If the judgment was paid, and such was the understanding of the parties when the $1,500 was paid to Babcock, then Clark thereafter had nothing to assign. He could not bring to life the dead judgment by assigning it to another. “Whether a codefendant has the right, on paying a judgment, to take an assignment for his benefit or not, his payment without such assignment, and without any agreement that the judgment shall be kept ■ alive for the purpose of enabling him to compel contribution from his codefendants, is a complete and irrevocable satisfaction.” 2 Ereeman on Judgments [4 Ed.], sec. 472.
But the plaintiff insists the evidence shows there was an understanding between Babcock and Oscar Lyle that this judgment should be assigned to Oscar, and that the assignment was made four months thereafter pursuant to that agreement. There was evidence tending to show such a state of facts, but there was much evidence to the contrary. o The court, on an