Berkey v. St. Paul Nat. Bank

Dickinson, J. In an action in the District Court instituted by this plaintiff against George B. Judd and Orange Walker judgment was finally rendered in January, 1876, in favor of the plaintiff for the sum of $13,813.36. Prior thereto Judd had died, and his widow, this defendant Mary Ann M. Judd, and the defendants James R. M. Gaskill and Ariel Eldridge, became the qualified executors of his estate. Walker paid one-half of the judgment, and the plaintiff satisfied the same to that extent, discharging Walker from further liability. It is not claimed that the judgment did not remain enforceable, as to the balance, against the estate of Judd. In the same month, — January, 1876, — a certified transcript of the judgment was filed in the probate court, and payment demanded [452] of tbe executors, but refused, although, all other debts of the estate, and the expenses of administration, had been then paid, and there remained, as assets of the estate, and available for the payment of this judgment, over $30,000 in real and personal property. In July, 1876, in proceedings in the probate court to require the executors to pay the judgment, that court sustained the contention of the executors that the plaintiff’s claim had become barred, because it had not been presented to the commissioners appointed by that court to receive and pass upon claims against the estate. This plaintiff appealed to the district court, where that determination of the probate court was reversed. The executors then appealed to this court. The decision of the district court was affirmed in this court,—Berkey v. Judd, 27 Minn. 475, (8 N. W. Rep. 383,)—and in May, 1881, it was thereupon finally adjudged in the district court that the order of the probate court be reversed, and that the executors be required to pay the plaintiff’s judgment. The judgment of the district court to that effect was certified to the probate court in February, 1882, and in June of that year a copy of it was served on the executors, and payment demanded and refused. While the foregoing proceedings were pending, and in January, 1877, the executors, without authority of the probate court, conveyed certain of the real estate to George F. Judd, (a son of the testator, and one of the residuary devisees and legatees under the will,) talcing his note for $10,575 therefor, without other consideration. A year thereafter they conveyed other portions of the real estate to John J. Sabin and Frederick H. Sabin, two sons of a daughter of the testator, for no other consideration than the promissory note of their mother for $1,600. This, too, was without authority from the probate court. These notes were never collected by the executors, but the amounts thereof were charged to the makers in a final settlement by the executors with them, as parts of their distributive shares under the will. The executors, also, in January, 1878, conveyed certain real estate to Orange Walker, in consideration of conveyances of other lands by Walker to said John J. Sabin and Frederick H. Sabin, the honest purpose of the transaction being thus to effect a partition of lands owned by the estate and by Walker as tenants in common. The real estate thus [453] conveyed by the executors to George F. Judd and to Walker has been since conveyed by suck grantees, and by mesne conveyances has been transferred to. these defendants; and upon part of the same valuable improvements have been made. These are the lands involved in this action, and which the plaintiff seeks to subject to the payment of his demand against the estate. The defendants purchasing such lands had constructive notice of the facts. The other lands so conveyed by the executors are still held by their grantees. No order was ever made by the probate court for the payment or distribution of the estate to or among the beneficiaries under the will, but all of the property, both real and personal, was thus distributed by the executors. The amount of the personal estate so distributed exceeded the claim of the plaintiff upon which this action is founded. In January, 1885, the plaintiff, in an action to recover for the same indebtedness upon which this action is founded, recovered a judgment against the executors (excepting Mrs. Judd) and against one D. M. Sabin, a surety on their bond, for more than $10,000. The summons was not served upon Mrs. Judd, (an executrix,) nor was any attempt made to subject her property to the payment of this claim. One of the executors against whom that judgment was recovered paid $3,500, and the plaintiff satisfied the same to the extent of one-half thereof. No execution was ever issued on that judgment, nor its enforcement attempted, prior to the commencement of this action. The plaintiff alleged the insolvency of the judgment debtors, but the court finds that this was not proved, which is equivalent to a finding of fact against the plaintiff upon that point. The presumption, in the absence of proof, is that they are solvent. This action was not commenced before the 23d of March, 1888. Confessedly this action is not founded on the statute declaring the liability of next of kin, legatees, heirs, and devisees to creditors of the estate. 1878 G. S. ch. 77. The brief of the appellant creates some doubt as to what precise relief he seeks by this action; but the ground upon which the decision of this appeal will rest is such that this is not very material, and we may regard the purpose of the action to be such as is indicated in the prayer of the com [454] plaint,—that is, that the court shall exercise its jurisdiction as a court of equity to subject to the payment of the plaintiff’s claim against the estate the real property which through the conveyances by the' executors to George B. Judd and Orange Walker, and through mesne conveyances from the latter, have been transferred to the respondents, strangers to the estate. The equitable doctrine of laches forbids the granting of such relief. It will be seen that when this action was commenced nearly seven years had elapsed after the entry of the judgment in the district court finally determining the plaintiff’s rights as against the estate, and the obligation of the executors to pay the claim. The remedy now invoked was as available to the plaintiff at that time as it was seven years afterwards, when he resorted to this action. The conveyances complained of had been made by the executors three and four years, respectively, before that final judgment in the district court; and, although the executors refused to pay the demand, and had disposed of all the assets of the estate, the plaintiff allowed seven years further to pass before instituting this action. The relief now sought, as respects these respondents, is, in effect, against persons who were never personally responsible to the plaintiff, and who are not chargeable with any misconduct. It is sought, after an unexcused delay of many years, to subject the lands which they have purchased, and to a large extent improved, to the satisfaction of the obligations of those from whom or through whom whatever title they now have has been acquired. The plaintiff does not present such a justification of his conduct as should satisfy the conscience of a court of equity, when, having delayed so many years to resort to the property conveyed by the executors more than ten years prior to the commencement of this action, he now seeks that relief as against remote purchasers of the property. After so long a delay a court of equity should refuse to aid the plaintiff as against such purchasers, even through they were chargeable with constructive notice of the facts relied upon by the plaintiff in derogation of their title. O’Mulcahey v. Gragg, 45 Minn. 112, (47 N W. Rep. 543;) State v. Probate Court of Ramsey County, 40 Minn. 296, (41 N. W. Rep. 1033;) Hill v. Nichols, 47 Minn. 382, (50 N. W. Rep. 367.) The case of the plaintiff appears in no better light when we con [455] sider Ms conduct in connection with the action against the executors and their surety, in which he recovered judgment in January, 1885. The enforcement of that judgment would have satisfied the claim upon which this action is founded. That judgment was recovered upon the theory that the executors had been guilty of misconduct,—a breach of trust,—for which they became personally responsible. They, rather than remote purchasers of the property, ought to be made to respond for their misconduct. But the plaintiff neglected for more than three years to attempt to enforce that judgment, choosing instead to seek, after that lapse of time, to satisfy his claim by resorting to the remedy here invoked against these respondents. The plaintiff is not only chargeable with laches which should forbid relief being granted in this action, but'he apparently had an adequate available remedy by enforcing his judgment against .the executors and their surety. TMs is an additional reason justifying the denial of relief in this suit. (Opinion published 56 N. W. Rep. 53.) Judgment affirmed.