Stewart v. Caldwell
54 Mo. 536
Mo.
1874
Check Treatment
Sherwood, Judge,

delivered the opinion of the court.

This was a suit, in the nature of a bill in equity, brought in the Henry County Court of Common Pleas, by the heirs at law, who were the children аnd grandchildren, of John R. Elliott, deceased, ‍​‌​‌​​‌​​​​​‌‌​‌‌​​‌‌‌‌​​‌​‌​​​‌​‌​‌​‌‌‌‌‌​‌​​‌‌‍to set aside a certain order and judgment of allowance, made and entered in the Probate Court of said county, in favor of defendant, Jas. R. Caldwell, and agаinst the estate of said decedent.

The petition in substance alleges that John R. Elliott, the decedent, died seized and possessed of a considerable amount of real estate, which had descended to and was held by the plaintiffs as tenants in common ; that defendant, Henry Shafer, was appointed аdministrator of said decedent’s estate, and, as such, took charge of and proceeded to administer upon the same; that the allowance in question was obtained and entered by fraud and fraudulent collusion between the said defendants,Caldwell and Shafer ; that Caldwell knew that he had no demand against the estate, and that the same was not indebted ‍​‌​‌​​‌​​​​​‌‌​‌‌​​‌‌‌‌​​‌​‌​​​‌​‌​‌​‌‌‌‌‌​‌​​‌‌‍to him, and the administrator, knowing this also, waived notice of, and made no defense against the claim, and concealed the allowance thereof from plaintiffs, in order to prevent them from showing to the court, that the same was fraudulent and unjust, and- in consеquence of such concealment, plaintiffs knew nothing of such allowance, until long after the fraudulеnt design was effectuated; that some time before the death of decedent, defendant, Caldwell, sold and conveyed to said deceased, certain lands in Henry County, and received, as the partiаl consideration therefor, certain promissory *538notes and accounts, wbicb were transferred tо him‘’without recourse, and at the risk of the transferee, which arrangement was entered in a written contract made at the time; that Caldwell, for the purpose of more effectually carrying into effect his said fraudulent purpose of obtaining the said fraudulent allowance, surreptitiously and wrongfully took pоssession of said instrument, which was then made by and between deceased and himself, and has secreted оr else destroyed the same; that Caldwell based his fraudulent pretenses for an allowance agаinst said estate, on the ground that he was unable to collect a portion of the notes thus transferrеd ‍​‌​‌​​‌​​​​​‌‌​‌‌​​‌‌‌‌​​‌​‌​​​‌​‌​‌​‌‌‌‌‌​‌​​‌‌‍to him, and that said estate was therefore liable to pay him the amount of said notes remaining uncollected; that, aside from the fraudulent demand as aforesaid allowed, the estate was indebted in a very inconsiderable sum, which had either been paid or for the liquidation of which the personal assеts were ample ; that, notwithstanding this state of facts, the administrator, Shafer, had, though well knowing that there was no necessity for an order for the sale of the lands thus descended, procured an order for the sаle of such lands, under the pretense that the personal'assets of the estate were insufficient for the payment of debts, &c.j &c.

The petition concluded with a prayer that the allowance anight be vacated and set aside, and the sale of the land postponed until a final hearing, and for other and further relief. The petition was held insufficient on demurrer, which alleged as grounds: 1st — That plaintiff, as shown ‍​‌​‌​​‌​​​​​‌‌​‌‌​​‌‌‌‌​​‌​‌​​​‌​‌​‌​‌‌‌‌‌​‌​​‌‌‍by the pеtition, had an adequate remedy at law, by appeal from the judgment of allowance; 2nd — -That, if injury had resulted, as alleged, from the acts of the administrator, a complete remedy at law existed by aсtion on his bond ; 3rd — That the petition contained no equity.

The court manifestly erred in adjudging the petition insufficient. A stronger case for equitable interference, was never presented than that which the demurrer ‍​‌​‌​​‌​​​​​‌‌​‌‌​​‌‌‌‌​​‌​‌​​​‌​‌​‌​‌‌‌‌‌​‌​​‌‌‍сonfesses to be true. The reason why the plaintiffs did not avail themselves of an appeal is sufficiently set forth in the petition; the alleged *539fraudulent concealment, cut them off from the benefits confеrred by an appeal, even were we to concede, that the heirs of an intestate arе possessed of such privilege. Nor could a suit on the bond of the administrator be regarded as adеquate and complete, because a recovery on such bond, if it could be obtained, would sоund only in damages; while the land which had descended to the heirs would have been, in the meanwhile, disposеd of; and courts of equity usually attach far greater importance to laud, as possessing an intrinsic value, not the subject of either computation or compensation in damages. But fraud belongs to thе original jurisdiction, always exercised by a court of equity, and constitutes its “most ancient foundation” ; and such jurisdiction is not ousted because a remedy exists at law, for the jurisdictional powers formerly possessed by that court, still continue unaffected by the enlargement which is taking place in the functions of the сourts of law ; and will not be extinguished by anything short of direct and positive prohibitory enactment. (1 Sto. Eq. Jur., §§ 64, 80, and cаs. cit.) A petition in all its essentials precisely similar to the one under consideration, was held good by this court, in Mayberry vs. McClurg, 51 Mo., 256 ; See also Harris vs. Terrell’s Ex’rs, 38 Mo., 421 and cas. cit.; Miles vs. Jones, 28 Mo., 87 ; 1 Sto. Eq. Jur., § 252.

Judgment reversed and remanded.

The other Judges concur.