Cowgill v. Linville

Hall, J. Owen as administrator of the estate of McCray was not the owner of the estate; he held the personal effects and c-hoses in action belonging to the estate as trustee for the creditors and next of kin. Stephens, Adm'r, v. The Mayor of Boonville, 34 Mo. 325. His power to dispose of the notes executed by Lin-ville and Warren McCray was limited and regulated by statute. He had no power to assign or transfer any of said notes except ‘ ‘ to creditors, legatees and distributees, in discharge of an amount of their claims equal to the amount of such * * * note,” or notes. Section 212, [146] Rev. Stat.; Chandler v. Stephens, 68 Mo. 452; Stagg v. Linnenfelser, 59 Mo. 342. The testimony of the defendant does not directly state that Owen, after the consummation of the agreement between them, surrendered the notes to him. It is nothing but fair, however, to assume from the evidence that Owen did make such surrender of the notes. That surrender of the notes, and the release of defendant by Owen from all liability thereon, in consideration of the transfer of the stock of goods by defendant to him, was illegal. The agreement, as shown by the defendant’s testimony, by which, of course, he is bound, was not an .agreement by which the notes were paid to Owen, as .administrator, by a transfer to him, as such administrator, of the stock of goods. That is, the agreement was not an agreement for the payment of the notes in goods instead of money. So that we need not consider that aspect of the case. The agreement was simply that of a sale of the defendant’s interest in the goods to Owen in part consideration of a surrender of the notes and a release of defendant’s liability thereon. In other words, by that agreement the administrator, Owen, paid his individual debt to defendant with the notes against defendant, which were the property of the estate. The agreement was illegal. The State to Use of Wolf v. Berming, 74 Mo. 95. By the illegal agreement, and unauthorized disposition of the notes by Owen, the notes were not paid. The title to the notes vested in Brown when he became administrator de bonis non (State v. Fulton, 35 Mo 323, and State v. Dulle, 45 Mo. 269), and he might have recovered on them notwithstanding the said agreement and surrender of the notes. Brown as administrator de bonis non of the McCray estate obtained judgment against the plaintiff and defendant, who were joint sureties on Owen’s bond as administrator of said estate, on account of Owen’s failure to account for the assets of the estate. This suit was brought for the purpose of having the plaintiff subrogated to the right that Brown had to recover upon [147] the notes against defendant, as to the part of the judgment paid by him, the plaintiff, misled by the fact that the plaintiff and defendant were co-sureties on Owen’s bond, the defendant has urged in his brief that this suit was brought by plaintiff to recover of defendant as co-surety the amount paid by plaintiff. It is true that the petition charges the defendant with certain acts and promises not necessary to plaintiff’s right to the subrogation sought by him. To sustain these charges there was no evidence. There was no objection to the petition made by the defendant. The petition clearly sets forth a claim of the plaintiff’s right to the subrogation; The evidence was confined exclusively to those facts upon which that claim was based. And we can see no reason in the claim made by the defendant that the petition alleges one cause of action and that the plaintiff seeks to recover on an entirely different cause of action. The fact that plaintiff and defendant were such co-sureties has a tendency to confuse, but that fact has no real bearing upon the question in this case, which is simply, whether upon the facts stated by the defendant in his evidence the plaintiff is entitled to be subrogated to the right that Brown had to recover against defendant upon the said notes, as to the amount paid by plaintiff upon said judgment. Upon this question, the following statement of the doctrine of subrogation has been approved by our supreme court: “ From the cases it would appear that we have adopted the general rule that a surety, by paying the debt of his principal, becomes entitled to be subrogated to all the rights of the creditor, so as to have the benefit of all the securities which the creditor had for the payment of the debt, without any exception — as well those which became extinct (at law, at least) by the act of the surety’s paying the debt, as all collateral securities which the creditor held for the payments which have not been considered as directly extinguished by the surety’s paying the debt. These decisions have been made upon a supposed, principle of equity, which for [148] the purpose of doing justice to the surety who has paid the debt, interposes to prevent the judgment or security which has been so extinguished at law from being so-considered as between the surety and the principal or his subsequent lien creditors.” Furnold v. The Bank, etc., 44 Mo. 339; Allison v. Sutherlin et al., 50 Mo. 277. The defendant is, therefore, in error in claiming that the plaintiff can be subrogated only to the rights of Owen, and that, because Owen could not have maintained a suit upon the notes against the defendant, the plaintiff cannot maintain such a suit. Admitting, only for the purpose of the argument, that Owen could not have maintained such suit, that fact can have no bearing upon the right of plaintiff to be subrogated to the rights of Brown, administrator de bonis non. If Brown-had, as we hereinbefore said, as such administrator de bonis non, the right to recover upon the notes against the defendant, then the plaintiff is entitled to be subrogated to such right, to an amount equal to what he paid upon the said judgment with interest. But the defendant makes another objection to plaintiff’s right to such subrogation. The defendant argues, if Owen had in fact accounted as administrator for the. amount due on the notes, if, in other words, Owen had paid to the estate the amount so due, that Brown would have had no right to recover again, for the benefit of the estate, the amount thus paid and accounted for; and that, inasmuch, as there is no evidence that Owen did not pay and account for, to the estate, the amount so due on said notes, it cannot be assumed that he did not do so. It is-true that neither the estate, nor any one in place of the-estate, would be entitled to payment twice of the notes. In this case, however, it appears that Owen as administrator illegally and without authority surrendered and delivered up, as paid, the notes to the defendant, that the defendant never paid the same in any manner, and that, thereafter, Owen having been removed as administrator and Brown having been appointed administrator de bonis non, Brown recovered a judgment against plain [149] tiff and Ms co-surety upon Owen’s bond, on account of Owen’s failure to account for the assets of the estate. In this case, upon these facts, we think that it devolved upon the defendant to show that the notes had been paid to the estate if such was the fact. The defendant had not paid the notes. If Owen had accounted for or had paid the notes to the estate, the defendant should have shown it. We hold that Brown, as administrator de bonis non, could have recovered the amount due upon the notes from the defendant, and that, as to the amount paid by the plaintiff upon the judgment aforesaid, with interest from time of payment, the plaintiff is entitled to be subrogated to the rights of Brown as such administrator. The judgment is reversed -and the cause is remanded. All concur.