162 Mo. App. 34 | Mo. Ct. App. | 1911
This suit was instituted and tried on the theory that it involved title to real estate. The finding and decree were for defendant and plaintiff prosecuted an appeal to the Supreme Court. Upon consideration, the Supreme Court determined that, though title to real estate may he affected by the judgment given on the pleadings, it is not in issue, and, therefore, transferred the case here for final determination, as will appear by reference, to Vandeventer v. Florida Savings Bank, 232 Mo. 618, 135 S. W. 23, where the pleadings are set out. in full. The sole question of law invoking the judgment of the court relates to the power of the administrators to convey title to defendant bank by. assignment 'of a promissory note made to them in their representative capacity during the course of administration, such assignment being in due form and for a valuable consideration. Other questions are of fact only, and they are concluded by the finding of the trial court thereon.
Defendant is and has been for many years an incorporated hanking institution doing business in Monroe county, while plaintiff owns eighty acres of land in that county, incumbered by a deed of trust securing a promissory note which was assigned to the- hank by the administrators of Hobbs for a valuable consideration. The suit proceeds on the theory, first, that the note had been paid and therefore the lien of the mortgage was released, and, second, that it had never been assigned to the bank for the reason the administrators were not possessed of authority under our statutes to assign notes of the estate to persons other than creditors, legatees or distributees, of which the hank is not one.
It appears that at the time of the death of J. H. Hobbs, to whom Vansclioaick and Kendall afterwards
On the 5th day of April, 1805, the sheriff of Monroe county sold the interest of Goss and wife, makers of the note and deed of trust in the eighty acres of land covered by the deed of trust, under execution issued on a judgment against the owners of such land, and plaintiff purchased at the sheriff’s sale. The case concedes that the judgment on which the sheriff sold under execution and under which plaintiff purchased was subsequent in point of time to the record of the deed of trust given by Goss and wife on the land, March 29, 1897, and which defendant now holds as security for the note.
It is difficult to determine the true issue presented here, but it seems plaintiff seeks a judgment declaring the bank to be without any interest whatever in the note and consequently none i/n the deed of trust on his land. Be this as it may, we will consider the arguments put forward in the briefs and dispose of
But it is said that, though the assignment on the note was executed by Kendall and signed by him for Vanschoaick and this act was thereafter ratified, or, though it was actually signed by both administrators in person, it availed naught toward vesting the title of the note in defendant bank, for the reason our statute impliedly forbids the transfer of such notes by the administrators to others than creditors, legatees or distributees. It is true defendant bank was neither a creditor nor distributee of the estate nor was it a legatee under the will, for there was none. Our statute (Sec. 216, R. S. 1909) provides that executors and administrators may assign the notes and bonds, stocks, accounts and all other evidence of debt of the estate to creditors, legatees and distributees in discharge of the amount of their claim equal to the amount of such bond or note. It has been frequently determined under this statute that an administrator may not assign a note or other evidence of indebtedness belonging to the estate, except in discharge of the claims of creditors, legatees or distributees, to the amount of their claims equal to the amount of such bond or note. It is said the statute implies an inhibition against such transfers to other persons and in this abrogates the rule of the common law on the subject. [See State to use of Wolff v. Berning, 74 Mo. 87; Stagg v. Linnenfelser, 59 Mo. 336; Chandler v. Stevenson, 68 Mo. 450; Weil v. Jones, 70 Mo. 560; Marshall v. Meyers, 96 Mo. App. 643, 70 S. W. 927.] But it is to be observed that the statute contemplates and treats of assets of the estate, for if the words imply an inhibition, it is with respect to the assignment of notes, bonds, stocks, accounts and all other evidences of debt “of the estate.” In all of the cases above cited where
Possessing full authority with respect to these matters as they did, the execution of the $520' note and deed of trust to the administrators in payment of that judgment by Goss operated to extinguish the judgment and the indebtedness which it represented as an asset of the estate and converted it into a debt payable to the administrators. In other words, the asset of the estate was thereby fully administered and a new obligation created as the proceeds thereof, which, in the eye of the law, the administrators converted to their own use by taking the note, payable to themselves, instead of to the estate. Such was an unwarranted exercise of dominion by the administrators over the proceeds of the judgment which was inconsistent with the rights of the estate, and, therefore, a conversion. Where such appears to be the fact, the courts universally declare the legal title with respect to the note so made payable to the administrators to reside in them and to pass upon their death to their personal representatives and not to the administrator de bonis non. For this, a suit on- the administrator’s bond will lie
■ It appearing as it does that the note executed by Goss to the administrators of Hobbs was in payment of a judgment in favor of the Hobbs estate, the judgment. asset of the estate must, therefore, be regarded as fully administered and the legal title of the note received in payment to have vested in the administrators as if converted by them so as to empower them to either sue upon it in their own names or assign it to another. In this view, the assignment to defendant bank was a valid'one and should be sustained.
It may be that this plaintiff, having purchased the land April 5, 1895, with the deed of trust upon it and of record years before, is not in a positiou to complain at all as to the validity of the assignment of the note to the bank, but we will not consider this matter further than to say it is immaterial in the view we take of the case. The judgment should be affirmed. It is so ordered.