McLaurine v. Monroe's Administrators

30 Mo. 462 | Mo. | 1860

Scott, Judge,

delivered the opinion of the court.

We do not see on what evidence the decree in this cause is founded. This is a proceeding under the old chancery system prevailing before the practice act of 1849, under which, if the evidence did not warrant the decree, it would be reversed. The only evidence material to the issues was the deposition of Monroe and the record of the judicial proceedings in Giles county in Tennessee, neither of which was authenticated so as to be read, even had the record been .evidence for the purposes for which it was introduced. It is alleged in the bill that Monroe was not a resident of the state of Tennessee, and the process to bring him into court was returned not found; and it appears that afterwards there was an order of publication in the cause, but against whom it does not appear, as the transcript contains a mere minute that there was such an order. Now whether this action be a suit on the decree, or one to make Monroe liable here as trustee in respect to the slaves he is alleged to have removed from Tennessee, as he had no notice of the suit, it does not bind, nor is it any evidence against him. The decree in Tennessee is the only evidence on which the court below found the value of the slaves and their hire. As the decree on its face showed that it was not evidence, a general objection to the transcript being read was sufficient.

As to Monroe’s being bound by. reason of his having become a purchaser pendente lite, that does not make him liable as a party to the decree. His purchase during the pen-dency of the suit might render the property subject to the execution or order of the court in Tennessee, but his mere buying the property does not make him a party to the decree in such way as will make it binding on him as a judgment to which he was a party. He may be sued here in respect to the trust property, and the lis pendens in Tennessee might be evidence, as he bought the property there, of notice of the trust; but as mere assignee pendente lite, how can the foreign decree affect him ? It might affect the property were it in Tennessee, but can it be used here as a decree against him ?

We said the lis pendens in Tennessee “might” be notice to a purchaser of the slaves of the equity of the complainants. The law in relation to the question whether movable personal property is subject to the doctrine of Us pendens does not appear to be settled. There is certainly a leaning in the courts against its application to such property. The cases on this subject are referred to in the case of Winston v. Westfield, 22 Ala. 570. As the parties have not alluded to this question in their briefs, we will hazard no opinion in regard to it. (Murray v. Lilburne, 2 John. Ch. 444.)

By the eleventh section of the third article of the statute of limitations of the code of 1835, and the sixteenth section of' the third article of the act of the code of 1845, the statute of limitations of 1825 applies, as. the cause of action arose under that act. This act being that which controls the limitation to this suit, the plaintiffs are not barred. (King v. Lane, 7 Mo. 241).

The record does not sustain the objection that the bill of exceptions was filed at a term subsequent to the decree without the consent of parties entered of record. The last page of the record shows that the bill of exceptions was filed at the term during which the motion for a rehearing was overruled.

It appears from thg record that the complainants made the answer of Braden to their bill in Tennessee against him a part of their bill in the present suit. Now if the answer of Braden to the bill of complainants in Tennessee is a part of their bill filed in this state, we can not see how they will get along with the case. That answer shows conclusively that the complainants have no cause of action, as it asserts that the deed under which they claim is fraudulent and void, having been máde to defraud creditors and purchasers. There must be some mistake or misapprehension in relation to this 'matter. As we would not hold the; parties to a slip of their counsel made through inadvertence and with no sinister view, this act may be obviated by an amendment.

We do not concur in the view of the defendants’ counsel, that the decree taken in Tennessee against Braden is a discharge of this action against Monroe. Where there is a right of action against several,,-a mere judgment without satisfaction against one is no discharge of the rest. Nor were the complainants confined to tbeir action of trespass as tbeir remedy. Tbe complainants might have brought trespass, but they were not confined to that. They allege that Monroe has purchased from another property to which he had no right and with a knowledge of their claim to it. This makes Monroe a trustee in a court of equity for those whose property he purchased with notice of their rights. In eases of this kind an action of trespass and a bill in equity are concurrent remedies.

In our opinion, the deed of Madison McLaurine conferred no such interest on the wife of William McLaurine as was subject to execution. The legal title was not in her, and the slaves were merely left with her for the support of herself and children. A sale of the property was destructive of the purpose of the deed.

Reversed and remanded.

The other judges concur.