McCormick v. Kirby

Napton, Judge, delivered the opinion of the court. This is a suit by certain legatees of Richard Johnson, who claim to be, under the will, entitled to a remainder in personal estate after the determination of a life estate in the defendant Kirby. The plaintiffs assert that Johnson, by his will, bequeathed two negro slaves to Mrs. Kirby, his daughter, for life, with remainder to the heirs of her body ; and if she should die without issue, remainder to the other children of said Johnson, who are the plaintiffs ; that Kirby and wife took possession of said slaves and in 1859, said Kirby sold said negroes under an order of the circuit court of Jackson county, and received therefor $2,400, and that in 1870 Kirby’s wife died. The plaintiffs therefore claim that the $ 2,400 received by Kirby, in lieu of the slaves, since the death of Mrs. Kirby, belonged to plaintiffs, who are the parties in remainder. The answer admits all the faces stated in the petition in regard to the will, possession of the slaves, &c., but states further that the present plaintiffs, or persons whom they represent, together with one Johnson, who is since dead without issue, instituted a proceeding in the Circuit Court of Jackson county, against said Kirby [152] and wife, which resulted in a decree authorizing the defendant to sell the slaves, or to pay their value whenever the rights of the plaintiffs and his co-defendants should accrue, and therefore insists that as at the date of the death of the tenant for life, the slaves ceased to exist as slaves, there was no remedy, or if there was, it was on the bond. It is further denied that the slaves were sold for ^2,500, but admitted that they were sold for $ 2,200, and that only the life estate of Mrs. Kirby was sold. The proceeding in 1859 referred to in this answer, and also in the petition, is set forth in the record* and as it has an important bearing on the case* the substance of it will be stated. In 1859 the present plaintiffs or their ancestors, parties entitled to the remainder in these slaves, instituted a proceeding in the Circuit Court of Jackson county, to restrain Kirby, the present defendant, from selling these slaves. The details of the petition need not be stated. The defendants admitted all the facts stated? but stated other facts which they believed would render a sale advisable, and denied that they had done or wished to do anything that would prejudice the rights of the-plaintiffs. Upon the petition and answer and proofs adduced, the court made the following final decree : “ Being satisfied that it would be dangerous to all concerned to keep the negroes, the court doth order and direct that said Richard Kirby is hereby authorized to sell and dispose of said slaves on such terms as he shall think proper, upon his executing a bond in the sum of $ 2,400, with Marcus Gill, as security conditioned that when the right of said Kirby’s wife shall cease to said slaves and the right of said Gatherine and others, (plaintiffs) shall attach to said slaves, that he shall produce said slaves or account for their value to the parties aforesaid ; ” and thereupon said Kirby (the record proceeds) “ tenders in open court the bond of himself and wife, with Marcus Gill as security, which said bond and its specifications and conditions is approved by the court, and thereupon this case is dismissed at the cost of the defendant (Kirby) to be enforced by execution,” &c. [153] The bond is as follows : “Know all men by these presents that we, Richard Kirby and Mary Jane Kirby, as principals, and M.Gill, as security, are held and firmly bound to the State of Missouri, in the penal sum of $ 2,400, lawful money, for the payment of which we well and truly bind ourselves, our heirs, &c. The condition is this • Whereas, R. Johnson did will certain negroes, to-wit, (here follows a description of the negroes,) to the wife of Richard Kirby and to the heirs of her body, and if she (Kirby’s wife) died without heirs, without any issue of her body, to revert to heirs of Johnson ; and, whereas, said Kirby and wife were about to sell and the heirs obtained an injunction restraining- them ; and whereas, the circuit court of Jackson county, dissolved the injunction upon said Kirby giving bond to be responsible to such heirs of Johnson as shall be entitled thereto when the right of said Kirby and wife shall cease to exist in, and to said negroes: Now, if when the right of said Kirby and wife, or either, shall cease to exist to said slaves, and the heirs of said Johnson shall be entitled thereto, the said Kirby shall then return said slaves, if alive, or shall pay to said heirs the value at that time, of said slaves, and in determining the value of said negroes or either of them, if not produced, the presumption shall be that said negroes are worth just what negroes of their age, and sound, would reasonably be worth, and the burden of proof shall be on said Kirby, to show the death of said negroes or either of them, that they are of less value than negroes of their age, if sound, would be worth; and in that event this obligation to be void, otherwise to remain in full force and effect. Given under our hands and seals this 25th day of March, 1859.” Signed “ R. Kirby. and sealed. Marcus Gill. Mary Jane Kirby. ’ ’ The conclusion of the present case was a decree by the court in favor of the plaintiffs for $ 2,200, and interest from 1870, when Mrs. Kirby died. The apparent hardship of this case, however decided, evidently grows out of an event not anticipated in 1859 by the court or any of the parties. The decree of the circuit court must be based on the assump [154] tion that the defendant was a trustee for the parties in remainder, and was guilty of a breach of trust in selling the slaves and converting them into money ; and therefore, upon general principles of equity, he could be held responsible for the money without regard to the character of the original trust fund. And perhaps, in the absence of any proceeding in court, this might have been just, as was held by this court in Lewey vs. Lewey (34 Mo. 367). But it is impossible to say that Kirby in this case was guilty of a breach of trust, seeing that he only did what he was expressly authorized to do by a decree of a court of competent jurisdiction, where the subject matter and all the parties in interest were clearly under its jurisdiction. To this decree in 1859, and the bond which led to it, all the parties now complaining, or those they now represent, assented. It is urged that some of them were married women, and therefore no estoppel applies ; but married women are as much estopped by judgments of courts of re'cord as any other parties to such judgment. It was to protect the rights of married women that the power of the court was invoked, and of course they were necessarily proper parties to the proceeding. That protection was granted in a shape, it is to be presumed, acceptable to them and all others who were parties, since no objection was taken to the decree or any appeal taken from it. All parties acquiesced in it and are bound by it, both plaintiffs and defendants. The proceeding in court in 1859, the terms of the decree then rendered, and of the bond on which it was rendered, upon any construction which might be given to this decree in regard to the amount of interest directed to be sold, clearly kept in view throughout the original nature of the fund. It is not a case of an unauthorized conversion by the tenant for life of slaves into money. In such a case the owners of the remainder would have an immediate right, according to some authorities, to claim a forfeiture of the life interest (2 Hals. Ch. 181), and at all events upon the termination of the life estate to get possession of their estate in remainder in the property or money into which the tenant for life had converted the original fund. But here the plain language of the decree and of the bond, authorizes the sale of [155] the slaves, and declares most specifically the liabilities of Kirby in the event o£ such sale. It is clearly provided that the death of the negroes before the termination of the life estate would excuse their delivery to the tenants in remainder, and no liability whatever is provided for, except when the title or estate of the remaindermen shall vest. The exact time fixed for the delivery of the negroes to those in remainder, or their value in money, is to be “ when the heirs of said Johnson shall be entitled thereto,” and “ when the right of said Kirby and wife or either shall cease to exist to said slaves.” The inquiry then is, when did the heirs of said Johnson become entitled to those slaves? The answer must be “never,” since Mrs. Kirby lived till 1870, and long before this, slavery was abolished here and elsewhere throughout the United States, and thus both the estate for life and the remainder were destroyed. It will' be observed that the bond in this case was made a part of the decree and incorporated in it literally. If this decree determined the rights of the parties, in the event of a sale either of the life estate, or of the entire title, courts of equity in adjudicating upon these rights are as much bound by it as would be a court of law in an action on the bond. Although courts of equity frequently afford modes of relief not attainable at law, yet they cannot disregard the solemn agreements of the parties by record. This relief must be based on the rights of the parties : and as in this case these rights and remedies were all specifically fixed in a proceeding in a court having ample jurisdiction over the subject, and over all the parties, it is too late for any of the parties, now to abandon or ignore this proceeding and attempt to assert claims which might have been asserted had no such proceedings occurred. We have no right to assume that Kirby would have sold on any other responsibilities than those he assumed under the decrees, and although that responsibility has turned out to be valueless, it was not his fault or through any action of his, but through an exercise of governmental power which destroyed his life interest as well as the interest of those in remainder. Tjhe judgment must be reversed. The other judges concur.