33 Mo. 106 | Mo. | 1862
delivered the opinion of the court.
Demurrer to the petition was sustained and judgment entered upon it; to reverse which, the plaintiff brings the cause to this court by writ of error.
The petition alleged that Charles H. Wells, as principal, and Charles Cheely, as security, made a promissory note. That both Wells and Cheely died, and plaintiff is administrator of Cheely’s estate; that the note was allowed as a demand against both estates; that a small portion thereof was paid by the estate of Wells, and a larger sum by the plaintiff, as administrator of Cheely’s estate, and that the personal property of the estate of Wells is exhausted, “ without leaving any assets with which to pay off” the claim of Cheely’s estate. The defendants in this suit are Hinman, administrator of Charles H. Wells, David B. Wells and Sarah Patchett. The petition charges that Charles H. Wells, in his lifetime, and after the maturity of the note above mentioned, bought and paid for a tract of land, but, with intent to defraud, hinder and delay his creditors, caused it to be conveyed to his brother the defendant, David B. Wells, who had notice of the fraud, and who afterward conveyed it to the other defendant, Sarah Patchett, who also had notice of the fraud. Plaintiff asks judgment in his favor, as administrator of the estate of Charles Cheely, against the estate of Charles H. Wells, for the amount paid by him upon the said note, and also for the unpaid balance allowed thereon against Cheely’s estate; that Hinman disclose the condition of the estate of Charles H. Wells, and that the tract of land be sold to pay off and discharge the plaintiff’s claim.
The defendant, Hinman, answered, but afterward all the
1. There is no proper party plaintiff.
2. The plaintiff does not aver that he is a creditor either of Wells’ or Cheely’s estate.
3. The petition does not ask the court to set aside the deed to Wells from Travis and wife, nor the deed from Wells to Patchett.
4. The plaintiff, as administrator, has no legal right to sue.
5. The plaintiff’s petition shows that he was not a creditor of Cheely nor Wells in their lifetime.
6. The plaintiff, as administrator, has no right to attack a conveyance of land for fraud.
7. The petition does not state facts sufficient to constitute a cause of action.
As to the first, fourth and sixth grounds, the plaintiff being the representative of Cheely’s estate, has the legal right and is the proper person to bring any kind of civil action which may be necessary to collect a debt due to the estate of Cheely.
As to the second and fifth grounds, I am not sure that I comprehend them. The plaintiff asked judgment as administrator of Cheely, and no objection is made to the petition that in the title of the cause the plaintiff is not described as administrator.
The petition shows an indebtedness by Charles H. Wells’ estate to Cheely’s estate, and the fact that the indebtedness and right of action did not become complete until after the death of the original parties is of no consequence.
As to the third point, it was not necessary in order to charge the land in the hands of Sarah Patchett with the debt that the deeds from Travis to Wells and from Wells to Patchett, should be set aside.
As to the seventh ground, the petition does state facts sufficient to constitute a cause of action. In fact, it states not only one but three several, separate and distinct causes of action against the three defendants separately.
Judgment reversed and the cause remanded;
