Tittman v. Thornton

107 Mo. 500 | Mo. | 1891

Black, J.

This was a suit in equity brought by Michael Carroll against John Thornton and others to subject certain funds in the hands of Archbishop Ken-rick, belonging to Thornton, to the payment of a jndgmen, which Carroll recovered against Thornton in the state of Iowa.

The following are the principal facts: Michael Carroll recovered a judgment against John Thornton in the circuit court of Dubuque county, Iowa, on the sixteenth of June, 1881, for the sum of $4,499. The pleadings in that case show that the cause was carried on in the name of Michael Carroll as if it had been a suit in his own right; but it appears from the body of the petition that the cause of action was based upon an indebtedness of Thornton as guardian of his ward, John Carroll. An amendment to the petition states that Michael Carroll was the administrator of the estate of John Carroll.

In May, 1886, Michael Carroll commenced this suit in this state against John Thornton and Peter Richard Kenrick. The petition, among other things sets up the Iowa judgment as one recovered 'by- Michael Carroll in his own right. It is alleged that another John Thornton, at the city of St. Louis, the uncle of the defendant Thornton, bequeathed to the defendant Kenrick the-sum of $20,‘000, in trust to pay to defendant Thornton the interest thereon during his life, and prays that Kenrick, the trustee, be decreed to pay to the plaintiff' the interest then accrued and thereafter to accrue on said fund until the judgment so recovered by the plaintiff in Iowa should be satisfied.

Thornton having been notified by publication appeared and by his answer disclaimed any interest in the fund, and on the suggestion of Kenrick one Duggan was made a defendant. Duggan by his answer claims-to be the owner of the income accrued and to accrue on said fund by virtue of an assignment of the same by Thornton to May Thornton, and a bequest of the same-by her to him. The plaintiff died while this, cause was-pending in the circuit court, and by consent of the-defendants it was revived in the name of Tittman, public administrator, having in charge the estate of Michael Carroll. The circuit court found the issue for-the plaintiff and entered a decree as prayed for and the defendants appealed.

1. The first complaint is that the circuit court erred in admitting in evidence the transcript of the-Iowa judgment. The objections made to the • transcript-are, first, that it shows a judgment in favor of Michael Carroll as administrator of John Carroll, while the petition declares upon a judgment in favor of Michael Carroll in his own right; second, that this cause should have been revived in the name of the representative of John Carroll and not in the name of the administrator of Michael Carroll.

Looking to the judgment only, as it appears in the-transcript, it is one in favor of Michael Carroll in his own right. Still the transcript as a whole shows that he recovered the same in the capacity of administrator-' of John Carroll, and we shall treat it as a judgment in .favor of Michael Carroll as administrator of John Carroll.

It has been held by this court on several occasions that when one takes a note pajmble to himsélf as executor or administrator he may sue upon the note in his own name, and that a suit may be maintained thereon by his executor or administrator. Rittenhouse v. Ammerman, 64 Mo. 197; Cook’s Ex’rs v. Holmes, 29 Mo. 61; Block, Adm’r, v. Dorman, 51 Mo. 31. The theory of these cases is that when one takes a note or other obligation payable to himself as executor or administrator he thereby makes himself a trustee of an express trust, and under the code may sue thereon in his own name. Should such a person die, resign his letters of administration, or be removed, and the note or other obligation be turned over to the administrator de bonis non, the latter may, of course, sue thereon. But there are many cases where the suit may be maintained either by 'the trustee or by the beneficiary. Mosman v. Bender, 80 Mo. 579; Chouteau v. Boughton, 100 Mo. 406, and cases cited.

But here the administrator appointed in Iowa recovered the judgment against the defendant Thornton, and then brought this suit based on that judgment in his own name in this state, and this he had a right to do. Hall v. Harrison, 21 Mo. 227. An administrator who has recovered a judgment in the state where he received his appointment may sue upon the judgment in his own name in a different state. Says Freeman: “There can scarcely be a doubt that a judgment rendered in favor of an administrator so merges the debt that it may be treated as his personal effects, so far as to authorize him to maintain suit thereon in a foreign country without there taking out letters of administration. Freeman on Judgment [3 Ed.] sec. 217. The following cases are to the same effect: Lewis v. Adams, 70 Cal. 403; Rucks v. Taylor, 49 Miss. 552; Barton v. Higgins, 41 Md. 539, Michael Carroll could not prosecute a suit in this state as administrator appointed under the laws of Iowa, but having recovered a judgment as administrator in that state he may sue upon the same in this state in his individual capacity. His right to recover here does not depend upon proferí of his letters of administration. As he may sue here in his individual capacity it must, follow that the suit may be revived in the name of his. administrator appointed under the laws of this state. The court, therefore, did not err in admitting the transcript in evidence.

2. The next complaint is that the court erred in excluding the assignment from John Thornton to May Thornton, and the transcript of the will of May Thornton, both of which were offered in evidence by the defendants. It is upon this evidence the defendant Duggan depends for title to the income arising from the trust fund.

This assignment, excluded by tÉe court, is in the-form of a deed executed by John Thornton of Dubuque couuty, Iowa, on the first of March, 1864, and was acknowledged on the same day before a notary public of that county and state. It professes to transfer to-May Thornton, who was the wife of John Thornton, his. interest in the income arising from the fund before-mentioned, held by the defendant Kenrick in this state, and several horses, cows and wagons. The court excluded the deed on the objection that the signature of Thornton had not been proved. Thereupon the-defendant read in evidence a single section of the statute law of Iowa which provides, in substance, that acknowledgments of deeds, mortgages and other instruments in writing, taken prior to the thirteenth of April, 1872, and which have been recorded, are declared “ to be legal and valid,” any law to the contrary notwithstanding. The defendants then again offered the instrument in evidence, but it was then discovered that the recorder had not signed the certificate indorsed thereon stating that the instrument had been recorded. The defendants then read in evidence part of the deposition of Mr. Graham, which deposition had been taken and filed by the plaintiff in which he, in substance, says: Am an attorney at law at Dubuque, Iowa ; have never seen the .assignment, but have seen' what purports to be a copy •of it on the records in the recorder’s office ; the instrument, if properly acknowledged according to the laws ■of 1864, was entitled to be recorded, and is properly recorded. The defendant then for the third time offered the instrument in evidence, but it was excluded on the ■objection that there was no proof of its execution by 'Thornton.

It is to be observed in the first place that defendants did not produce a copy of the Iowa record, certified either under the act of congress or under section 4844,of the Revised Statutes, 1889, of this state. Nor did they produce or offer in evidence a sworn copy of such record. The statutes just meutioned make records and exemplifications of office books, kept in any public office of a sister state, not appertaining to a court, evidence when certified as therein specified. These statutes, however, have reference to the record of a sister state and exemplification of such records. They do not, as we understand them, make the original instrument evidence ; for the original instrument is no more than a private document, so that a copy of it would not be evidence under either of the before-mentioned statutes. Karr v. Jackson, 28 Mo. 316.

Concede, therefore, that the evidence of Graham is sufficient to show that this instrument was recorded in Iowa, still that does not help the defendants. The ■defendants offered in evidence, not a record of a sister state, but the original bill of sale, assigning the income of a trust fund which is located in this state. The original bill of sale must be proved according to the laws of this state. The fact that it had been recorded in Iowa does not dispense with proof of its execution. We have no statute which authorizes the acknowledgment of such a document, and the fact that it was acknowledged before a notary public here or elsewhere does not prove its execution. The appellants have not cited us to a statute or single authority which has the least tendency to show that this assignment should have been admitted in evidence without proof of its execution. The court, we conclude, did not err in ■excluding it.

3. The next complaint is that the court erred in ■excluding the transcript of the will and the probate thereof of May Thornton. It seems to have been ■excluded on the ground that the certificates were made by a clerk and a judge of a court other than that in which the will was probated. The transcript does show that the will was admitted to probate by the circuit •court of Dubuque county, Iowa, on the twenty-sixth ■of October, 1880. To this transcript there are attached the following certificates : First. A certificate of the ■clerk of the district court of that county aiid state in which he says “ that the foregoing is a true copy of the last will and testament of May Thornton, deceased, and the certificate of probate thereof, as the same appear of record, and on file in my office at Dubuque, Iowa.” This •certificate is dated the twenty-sixth of January, 1887. Begond. A certificate of the judge of the district court to the effect that the certificate of the clerk is in due form. Third. Another certificate of the clerk of the ■same date as the first to the effect that the person who signed the second certificate is judge of the district court and his signature genuine. Fourth. A further ■certificate of the clerk of the district court of date the •eighteenth of February, 1887, to the effect that the ■circuit court was abolished on the first of January, 1887, and the jurisdiction and records thereof transferred to the district court.

The only authentication reqxxired by the act of ■congress is the certificate of the clerk and that of the judge; and when the court in which the proceedings were had, has been abolished and the records transferred to the custody of another court, the certificates of the clerk and judge of the court to which the records have been transferred will be sufficient. Manning v. Hogan, 25 Mo. 570. Had the clerk in his first certificate, followed by the certificate of the judge as it is, stated the fact that the circuit court had been abolished and the records transferred to the district court, we think the certificates should be received as prima facie evidence of the fact thus stated. But the first certificate, as it is, shows that the will and the probate thereof constituted part of the records of the district court, and from this it should be presumed that they were there of right and belonged to that office, until the contrary is made to appear. The trial court, therefore, erred in excluding this transcript.

4. It is insisted that there is no sufficient proof of the insolvency of the defendant Thornton, and hence no foundation laid for this proceeding in equity. The plaintiff produced the only evidence offered on this issue. It shows that Thornton was a non-resident of this state and that he resided in Dubuque county, Iowa. A Mr. Carson of that place testified that he had known Thornton for thirty years, that Thornton owned a homestead of five acres on which he resided, a cow or two, and was reported to have a legacy in St. Louis, that he did not know of any other property, real or personal, owned by him. The attorney for the defendants in this case being called by the plaintiff testified that he did not know the defendant Thornton until called into the present case, that he knew of no property owned by Thornton in this state. We think this evidence is prima facie sufficient to show the insolvency of Thornton, or at least to show that the legacy is the only property out of which the plaintiff’s debt can be made.

5. Finally, it is insisted in the brief of the appellants'that a new trial should have been awarded •on the ground oí surprise in excluding the assignment, due to the mistakes of counsel in not discovering the fact that the recorder had not signed thfe certificate indorsed thereon. We have before treated this assignment as if the certificate had been duly signed, and' have held that the certificate properly signed would not have made the assignment evidence without proof of its execution by Thornton. There could, therefore, have been no surprise arising from the fact that the certificate was not signed by the recorder. The exclusion of the assignment is due to the failure to make any proof, of its execution. This proof could have been procured ¿by the use of ordinary diligence. This court in Fretwell v. Laffoon, 77 Mo. 26, approved the following statement made in 3 Graham & Waterman on New Trials, page 398 : “ If the surprise was owing to the least want of diligence, the applicant will be without sufficient excuse, and his motion will be denied. It is a condition precedent to his attaining relief, that he shall be wholly free from blame.” Surprise produced by the laches of a party is never a .good cause for new trial. These rules applied to the case in hand it must follow that there was no surprise for which a new trial can be awarded.

6. Without the assignment, the will becomes immaterial, and we cannot see. any ground upon which this court can, of right, award a new trial. The judgment is, therefore, affirmed.

Sherwood, C. X, not sitting, the other judges concur.