99 Mo. 684 | Mo. | 1889
On May 7, 1872, letters of administration were issued upon the estate of James R. Cline to
William T. Brison, one of the sureties of Cline and Blair, Jr., died in 1885, and Lucy H. Brison is the administratrix of his estate. In the year, last mentioned, the plaintiff presented the judgment, before mentioned, for allowance against the Brison estate, and the probate court allowed the demand in the sum of thirty-five hundred and seventeen dollars, and the defendant appealed. A trial anew in the circuit court resulted in a judgment for defendant and the plaintiff appealed to this court.
The defenses set up to the demand are, first, payment; and, second, that Brison, as a surety on the bond, was released and discharged from all liability by Brooks, the former administrator de bonis non.
The further facts disclosed by the evidence are in substance as follows : • An execution was issued upon the judgment against Cline and Blair, Jr., and their sureties on September 9, 1873, and levied upon real estate of the principals and sureties of a value more than sufficient to pay the judgment. This execution was returned not satisfied and without a sale on the
The evidence shows that Blair, Jr., acting for himself and Mrs. Cline, had frequent interviews with Brooks from and after the levy of the execution in 1873, with a view of saving the sureties; and the evidence tends to show that Brooks agreed to give these principal debtors time to pay off the debts of the Cline estate, and to take the receipts of Mrs. Cline for herself and as guardian of her child for any balance, provided the probate court would accept these receipts in the final settlement to be made by Brooks. Pursuant to this
There is other evidence to the effect that Erooks as administrator de bonis non, on various occasions, extending over a period of three dr four years from 1873 or 1874, stated that Mrs. Cline and Blair, Jr., had made arrangements to pay off the debts of the Cline estate and were to have time to do so, and that the sureties were released and he had notified them that they had been released. This evidence of Brooks’ declarations finds support in the undisputed fact that the sureties were never called upon to pay any part of the judgment from 1874 to 1885, and in the further fact ■ that Brooks paid Brison an allowed demand of $181.60, and the present plaintiff paid to him as late as 1882 allowed demands amounting to $1,191. In the meantime the principal debtors became non-residents and they and all the sureties, except Brison, became insolvent.
1. For the plaintiff the court instructed the jury that no presumption of payment of a judgment would arise from lapse of time, short of twenty years. The defendant then asked and the court gave an instruction to the effect that it was not necessary that payment should be positively shown, but it might be presumed from lapse of time, short of twenty years, with other circumstances, if any, tending to show payment, and if they believed from all the evidence that the judgment had been paid they should find for the defendant.
The evidence does not tend to show that Brooks took the deed of trust in payment of the balance, due upon the judgment, for it only professes to be additional security. The only substantial issue of fact over the payments was whether the $3,486.59 was included
2. The court, on the request of plaintiff, refused to instruct the jury that although Brooks, as administrator de bonis non of the Cline estate, did agree to release the sureties on the bond of Mrs. Cline and Blair, Jr., still he had no power or authority to make such release, and the sureties' were not thereby discharged ; but of its own motion directed the jury that if the execution was returned not satisfied by order of Brooks in 1874, pursuant to an agreement with the principal debtors to the effect that he would extend the time of payment of the judgment, release the sureties and look to them alone for payment; that Brison was informed of the agreement and was told by Brooks that he was discharged; that Brison acted upon that assurance to his death in 1885 ; that the property of the principal debtors levied upon was sufficient to satisfy the judgment; and that they became insolvent and non-residents in 1881, then the finding should be for defendant.
There is no doubt but the administrator holds the property of the estate for the sole purpose of administration, and his duties are for the most part defined by statute, and there is no statute which, in terms, allows him to discharge a surety on a debt due the estate. But he is charged with the collection and preservation of the assets, and there are many things which he may
It is certainly within the power of an administrator to take additional security, and, in doing- this, it will often become necessary to give further time to the principal debtor. The fact, that such a power may, in some instances, be exercised to the detriment of the estate, is no reason why it should be denied in all cases. The administrator, by extending the time of payment to -the principal debtor, without the consent of the sureties, may make himself and his own sureties liable. The cases -cited are quite to the point, and justify - the conclusion that the administrator Brooks had the power to give the principal debtors an extension of time in which to pay the judgment.
The judgment against the principals and sureties on the bond did not extinguish the relation of principal and surety; and the rights of the sureties, as such, remained the same as before judgment. Rice v. Morton,
It can make no difference in the result that Nettie Cline has thus far failed to furnish receipts for any money that may be coming to her and -her child, after the payment of the debts of the estate. Brison had nothing to do with that arrangement and his release does not depend upon its perform a nee.
The plaintiff makes the further point that there is no evidence tending to show that the property of the principals, Nettie Cline and Blair, Jr., levied upon was sufficient to satisfy the judgment, and this point seems to be well taken. While the property of the principals and sureties levied upon was sufficient in value to have paid the judgment of ten thousand dollars and over, that of the principals did not exceed in value .thirty-five hundred dollars. This error, however, should not reverse the judgment. The other facts stated in the instruction are well supported by the evidence, and are of themselves sufficient to support the judgment. The release of Brison stands upon the ground that he had been assured by Brooks that he was discharged, and upon that assurance he rested and relied for a period of ten or more years, and in the meantime the principals and other sureties became insolvent. These facts are so clearly disclosed by the evidence that the judgment should not be disturbed for the error before mentioned. The iudgment is therefore affirmed.