text:
    Henry County, to use, &c., Defendant in Error, v. Gates, Plaintiff in Error.
    1. One partner has no authority to bind his co-partner by instrument under seal.
    2. If one partner, authorized by his co-partner by instrument not under seal to execute a note, executes in his own name and that of his co-partner a sealed note or bond, no recovery can he had thereon against such co-partner ; a plea of non est factum will be made good by such facts.

      Error to Henry Circuit Court.

    This was a suit by Henry County, to the use of the road and canal fund of said county, on the following instrument: “ Twelve months after date, we or either promise to pay Henry County, for the use and benefit of the road and canal fund of said county, the sum of one hundred and fifty-six dollars, for value received, with interest from date. As witness our hands and seals this 11th day of November, 1851. [Signed] J. R. Gates (seal), J. M. Vanhoy (seal), Abraham Banta (seal).”
    Defaults were taken against Vanhoy and Banta. Gates answered, putting in issue "the execution of the bond. The cause was tried by the court without a jury. Vanhoy, one of the defendants, was, without objection on the part of Gates, called as witness. He testified that Gates and himself were partners doing business in Henry county, 1851; that they were indebted to the Bank of Lexington and wished to raise money to pay said debt; that he informed Gates that there was money in the county treasury belonging to the road and canal fund which might be obtained; that Gates gave to witness the following written authority: “I do hereby authorize J. M. Vanhoy to assign my name to a note for two hundred dollars, payable to the county of Henry for the use of the road and canal fund. This 10-, 1851. [Signed] J. R. Gates;” that he (Vanhoy) as co-partner signed Gates’ name to said bond sued on.
    The court found for plaintiff.

      W. P. Johnson, for plaintiff in error.
    I. Gates did not sign the bond himself, nor did he authorize any one to sign the bond for him; he did authorize Yan-hoy to sign his name to a note for $200. An agent can not bind his principal by deed unless he be authorized by deed. (9 Wend. 56; 14 Serg. & Raw. 331; 5 Mass. 11; 1 Mo. 139 ; 2 Johns. 213.)

      Wright, for defendant in error.
    I. Yanhoy was admitted as a witness by consent. There was no objection to him as a witness. (13 N. H. 32, 179 ; Coll, on Part. 716.) There is no force in the objection that Yanhoy was authorized to sign a note and that the instrument sued is a bond. In legal acceptation the instrument is a promissory note. The authority to Yanhoy was ample. The seal does not vary the liability of Gates. There is no difference in effect in this state between a note with a seal and one without a seal. If the act of one partner be a good and valid act in itself, it will not be rendered less so if done by a specialty, provided the seal do not vary the liability. (Taply v. Butterfield, 1 Mete. 515 ; Smith on Cont. 354 ; 5 Watts, 22.) A partner may bind his co-partner by instrument under seal executed in the firm’s name and necessary in the usual course of business, provided he had previous authority, and such authority need not be under seal, nor in writing. (3 Kent, Com. 53 ; 1 Seld. 229 ; 3 Comst. 150 ; 2 Stew. 297 ; 19 Johns. 513 ; 1 Hall, 262.)
   Napton, Judge,

delivered the opinion of the court.

The rule of the common law in relation to a written instrument under seal executed by an agent, is that the authority of the agent to execute it must be under seal; and, so far as deeds or conveyances of land are concerned, the- rule is strictly adhered to. Since the substitution of scrawls for seals and the allowance of defences to bonds as extensive as those to notes, the distinction between these two classes of written instruments has become purely technical, and there has consequently been an inclination on the part of the courts to modify this ancient rule so far as it relates to them. Where the contract would be good without a seal, it has been maintained that the seal will not prevent its enuring as a simple contract, though the authority be by parol or merely implied from the relations between principal and agent. (Lawrence v. Taylor, 5 Hill, —; Worrell v. Munn, 1 Seld. 239.) So in partnerships, where property has been conveyed by a sealed instrument, which could as well have been transferred by a simple contract or by parol, the title will pass, although the partner who executed the instrument under seal had no authority to put the partnership name to such a paper. (Anderson v. Thompson, 1 Brock. C. C. 462.)

Conceding this to be the law, the case before the court is somewhat different from either class of cases. It is not an attempt to treat the contract as a simple contract, and recover upon proof of the parol authority to borrow the money, and that the money was borrowed, and that it went into the partnership concern and was used for the partnership benefit. This suit is on the sealed instrument; the plea of non est factum is put in, and the plea is confessedly sustained. To permit a recovery in such a case upon the ground that the defendant, in equity and good conscience, owes the money and is bound to pay it, is virtually to abolish all distinctions between bonds and notes, which, however politic or proper, would seem to require some legislative interposition. But it would be going farther than this. The plaintiff sties upon a sealed obligation, which he says was executed by the defendant and is now due, and asks for a judgment for the amount so called for by the instrument. The defendant denied the execution of the' instrument, and the proof shows that there was a parol authority to sign a note for the sum specified in the bond. In. other words, the proof shows that the specific instrument., sued on had no obligation upon the principal who is sued.. Can the court, because it appears that the money was actually-borrowed by authority of the defendant, and used by hinuim the partnership of which he was a member, enter a judgment on the bond ? Would not this be a departure from the issue such as even the liberality of our new practice act would not tolerate ? Would it not in truth be a judgment in the face of the pleadings ?

In the case of Cooper v. Rankin, 5 Binn. 613, where an attorney, not authorized by writing under seal, executed a deed of release, under seal, in the name of his principal, the court held it could not be given in evidence under the plea of non est factum, but permitted it to go in under the plea of non assumpsit, as evidence of an agreement not to sue. There, it will be observed, the sealed release was used by way of defence. There were pleas of release, non assumpsit, payment, &c., to the note sued on. To the plea of release, non est factum was replied. Upon the issue of non est factum, the court treated the release as invalid in conformity to the precedents ; but as other defences were put in — non assumpsit and payment — the release was allowed to go in to prove an agreement not to sue; and in this way was made available. This case goes as far perhaps as any, but it shows that this judgment can not be sustained. Here the bond is not offered by way of defence along with other defences, but it is the ground-work of the action and its only basis. The defence of non est factum is put in the pleadings and made out in the proof. Whether an action for the money may not be maintained in another form, is a question not now before the court. There are certainly authorities in New York, perhaps elsewhere, to show that upon the facts of the case an action would lie. The simple contract is not considered as merged in the bond.

With every disposition to sustain the judgment of the circuit court, we are unable to to see how it can be done consistently with well established principles.

Judge Scott concurring,

the judgment is reversed.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    Thompson, Respondent, v. Crutcher, Appellant.
    1. In an action on a promissory note, an answer, stating that the consideration of the note was the sale of a certain tract of land, and that the plaintiff (the vendor) had not, at the time of the sale, “ title to a portion of the land sold,” is insufficient to set up the defence of a partial failure of consideration.
    2. A. bought a tract of land of B. and gave his promissory note payable at a specified time for the purchase money; B. at the same time gave his title bond to A. conditioned for a conveyance at the time specified in the note. Held, that the promise to pay the purchase money, being by a distinct and separate instrument, was not dependent upon the covenant to convey; that B. might maintain an action on the promissory note without offering to make a conveyance.

      Appeal from Buchanan Court of Common Pleas.

    The following is the petition in this case: “ The plaintiff, William N. Thompson, states that the defendants, W. H. Crutcher, R. M. Crutcher and Robert C. Mosely, on the 25th day of April, 1857, executed to the plaintiff their promissory note, and obligation of said note, binding themselves to pay to the plaintiff $15,500 on the first day of October next following said date, for the consideration and sale and purchase of 540 acres of land. Said note is due and unpaid and is filed herewith. Wherefore plaintiff prays judgment for $15,500 and interest and costs upon said note.”
    The note is as follows: “ On the first day of October next, we promise to pay William N. Thompson fifteen- thousand five hundred dollars, being the purchase money in full of five hundred and forty acres of land, in Ruchanan county> Missouri, this day purchased of said Thompson by W. H. Crutcher, and being the same land for which said Thompson has this day executed his title bond to said Crutcher. Given under our hands this 25th day of April, 1857. [Signed] W. H. Crutcher, R. M. Crutcher, Robert C. Mosely.”
    The following is the title bond referred to: “ Know all men by these presents, that I, William N. Thompson, am held and firmly bound unto William H. Crutcher in the penal sum of thirty thousand dollars, for the payment of which well and truly to be made I bind myself, my heirs, executors and administrators firmly by these presents. Sealed with my seal and dated this 25th day of April, A. D. 1857. The condition of the above bond is such, that whereas the said William N. Thompson has this day sold to the said William H. Crutcher the following described tracts, pieces or parcels of land [describing them] for the sum of 115,500 for all of said land, payable on the first day of October, 1857 : Now if the said William N. Thompson, on the payment of said sum of money at the time aforesaid, shall convey said described premises by a good and sufficient deed of general warranty to the said William H. Crutcher, his heirs or assigns, then these presents shall be null, void and of no effect; otherwise to remain in full force and virtue in law. And the said Thompson further binds himself to give possession of the dwelling house on the tract on which he resides at the time the sum aforesaid is paid to him; of the farm land he is to be permitted to retain possession a sufficient time to take care of and remove the crops which may be grown on said land during the present season. Witness, &c. [Signed] William N. Thompson (seal).”
    William H. Crutcher made no appearance or defence. The defendants, Mosely and R. M. Crutcher, answered, admitting the execution of the note, but setting up that they were securities ; that the consideration of the said note was the sale of the land referred to therein; that “ at the time of the execution of said bond plaintiff had not title to a portion of the land sold, but to what portion thereof these defendants do not know; neither have they any knowledge or information thereof sufficient to form a beliefthat the agreements to pay the money and to make a deed are mutual, dependent and concurrent agreements and covenants ; that plaintiff has not complied or offered to comply with the terms of the bond.
    This answer was stricken out on motion of plaintiff. This action constitutes the error complained of.

      Vories, for appellant.

      I. The court erred in striking out defendants’ answer. The answer was sufficient. The covenants to pay the money and to make the deed and deliver possession were concurrent and dependent. (1 Chitt. PL 323; 11 Wend. 48; 15 Mo. 387.)
    I. The answer also alleges that Thompson is not the owner of part of the land sold and therefore could not make such a deed as he had covenanted for. (11 Wend. 48 ; 16 Mo. 419.)
    Loan, for respondent.
    I. The covenants were mutual, independent covenants. (8 Mo. 487; 7 Mo. 569.) The allegation of failure of title was insufficient to raise the question of failure of consideration. (10 Mo. 267.)
   Scott, Judge,

delivered the opinion of the court.

So much of the answer as alleges that the plaintiff was not the owner of a portion of the land sold is insufficient to set up the defence of a partial failure of consideration. The portion may be so small that the maxim de minimis non curat lex would apply; and every party’s pleadings are to be taken strongest against himself. If the defendants set up the want of consideration, the burden of proof is on them.

As the promise by the defendants to pay the money was an absolute and unconditional one by a separate instrument, it can not be considered as mutual and dependent on the covenant to convey, as that is by a separate and distinct agreement. Under such circumstances the rule with regard to mutual and dependent covenants does not apply. (Simonds, adm’r of Best, v. Beauchamp, 1 Mo. 421; Bircher v. Payne, 7 Mo. 462.) The other judges concurring, the judgment will be affirmed.


author: Napton, Judge,

text:
    Shapleigh & Rue, Respondents, v. Baird, Garnishee, Appellant.
    1. Section 39 of the act concerning voluntary assignments (B. C. 1855, p. 210) does not invalidate partial assignments for the benefit of a portion of the creditors of the assignor.
    2. Partial assignments still being valid notwithstanding said section, it operates to overthrow all provisions in such assignments which give preferences among the designated creditors.

      Appeal from, Cooper Circuit Court.

    At the March term, 1857, of the Cooper circuit court, a judgment was rendered in favor of Marshall Shapleigh and Francis J. Eue, against Hemy G. Brent. An execution was issued and William E. Baird was summoned as garnishee. The usual interrogatories were filed. The garnishee answered denying that he had any property, money, &c., of Brent’s. To this answer the plaintiffs, Shapleigh and Eue, filed a denial, alleging substantially that Baird was then in possession of a large amount of money as trustee under a certain deed of assignment made by said Brent, in which assignment provision is made for the payment pro rata of certain debts due and owing by said Brent to certain of his creditors, but in which deed no provision is made for the payment of the debt due from Brent to said Shapleigh and Eue or any portion thereof. Baird, garnishee, replied admitting that he held property under the deed of assignment as stated, but claimed that said deed of assignment was legal ECnd valid.
    An agreed case was made embodying the above facts. The cause was submitted to the court without a jury. The court, at the instance of the plaintiffs in the execution, declared the law to be as follows: “ 1. If the deed of assignment made by H. G. Brent, on the-day of-, 1857, to William E. Baird as trustee, referred to in the pleadings and set forth in the agreed facts, did in its provisions prefer the payment of certain debts then due certain persons by said Brent, in exclusion of the indebtedness due to plaintiffs (Shapleigh and Rue), and for which judgment was rendered against said Brent at the March term of this court, 1857, then the said assignment made by said Brent is void as to the said plaintiffs, and judgment will be rendered in their favor against the garnishee. 2. If the court find from the evidence and the facts agreed by the parties, that, at the time of making the assignment set forth in the agreed facts, H. G-. Brent was justly and legally indebted to Shapleigh and Rue (the plaintiffs in the execution) in the sum of $-, and that no provision was made in said assignment for the payment of said indebtedness or any portion thereof, then, although said assignment may have provided for the payment of the bona fide debts of said Brent, yet the same is void as to the plaintiffs, and the assets of said assignment in the garnishee’s hands are subject to this garnishment, and the court must find for the plaintiffs in the execution.”
    Judgment was rendered in favor of the plaintiffs in the execution.
    Adams, for appellant.
    I. The question raised by this record is whether a debtor can, under the laws of this state, make an assignment for the benefit of a portion of his creditors. It is not whether an assignment, made for the benefit of some, would enure to the benefit of all the creditors, but whether an assignment thus made is absolutely void as to the creditors not named therein. The 39th section of the assignment act (R. C. 1855, p. 210) does not make such assignments void. It is the provision or clause of the assignment providing for the’ payment of one debt in preference to another that is declared void. The assignment, notwithstanding such void clause, is to stand, and all the creditors named or embraced within the assignment are to be paid pro rata o\rt of the assets. This is the plain meaning of the section. The legislature did not intend to abridge the right of debtors to make assignments. They still have the right, in the language of the statute, to assign their property, or any part thereof, for the benefit of their creditors, or my of them. (See Assignment Act, R. C. 1855, p. 202, § 1.) Previous to the revision of 1855 assignments for the benefit of a portion of the creditors of the assignor have always been recognized as valid. (Gates v. Labeaume, 19 Mo. 238.) The first section clearly recognizes the right of a debtor to make an assignment for the benefit of a part of his creditors. Section 39 does not take away their right. The object of this section was to prevent the classification of the creditors embraced within the assignment, and to compel debtors to place the creditors named or included within the assignment on the same footing. If he will make an assignment for the benefit of a part of the creditors, he can not make preferences amongst them, but all the creditors “ within the provisions of the assignment shall be paid pro rata from the assets thereof.” Even if the debtor should, in violation of the 39th section, classify the debts embraced within the assignment, it would not render the assignment itself void. The assignment would still stand, but the provision classifying the debts would be void, and the whole assets would be paid pro rata to the creditors embraced within the assignment. The judgment of the circuit court can stand only upon the assumption that the assignment itself is void as to outside creditors.
    An assignment for the benefit of a portion of the creditors of the assignor can not enure to the benefit of all the creditors. An outside creditor can not work himself into an assignment which was never intended for his benefit. There is nothing in section 39 to warrant such an idea. That section speaks only of the creditors within the provisions of the assignment, not such as are outside of the assignment.

      Ryland and Stephens & Vest, for respondents,
    cited R. C. 1855, p. 210, § 39; Burrill on Assignments, 98, 110, 111; Boardman v. Holliday, 10 Paige, 223 ; 6 Hill, 438 ; Webb v. Daggett, 2 Barb. 11; Brown v. Webb, 20 Ohio, 389, 400.)
   Napton, Judge,

delivered the opinion of the court.

The 39th section of the act concerning voluntary assignments (R. C. 1855, p. 210), which was added to this law at the late revision, has given rise to some doubts as to the effect of partial assignments since the passage of the act. This provision has been supposed to invalidate all assignments by a debtor to a portion of his creditors, or at least to make such assignment in effect a general one, so as to let in all the creditors and entitle them to an equal distribution of the property assigned. Previous to the insertion of this section such a construction could hardly have been given to the law. The first section in express terms recognizes the right of a debtor to make a partial assignment embracing only a part of his property or a portion of his creditors. We have not observed in any other section of the act, as it stood before the recent revision, any provision conflicting with this power. It is true, that the general term “ creditors” is frequently used in the act, and the phrase is large enough to extend to all the creditors, whether named in the assignment or not; but it is reasonable to infer from the positive language of the first section, as well .as the general scope and intent of the law, that this general designation of creditors was meant to be restricted to such as were named in the assignment. To give it a more extensive signification woul'd be repugnant to the express provisions in the first section, which beyond all doubt permit a debtor to limit the benefits of a transfer of his property to such of his creditors as he chooses to name in his assignment.

Was it then the intention of the 39th section to abolish this right and make all assignments, after the passage of the act, operate as general assignments, whether all the creditors are named or not ? It will readily occur to any one examining this question, that if such was the intention of the legislature, they have been guilty of a singular oversight in leaving the first section of the act in full force and without even a verbal alteration. To give to the 39th section the construetion insisted on, which virtually puts an end to all partial assignments, we must hold the first section pro tanto repealed, for the two sections thus construed are entirely repugnant. The language of the 39th section does not of itself require any construction which will at all conflict with the first section or any other section of the act.

To what extent the legislature may have supposed the remedy provided by the 39th section went, and what particular evils this section may have been designed to cure, it is not important for us to inquire. Wo perceive an evil which existed under the old law and which this section seems designed to remove, and which, upon a plain literal interpretation, it does remove. It is not our province, because it fails to reach the core of the disease, to undertake its amendment. Allowing partial assignments still to be valid, as they were previously to its enactment, the section abolishes all provisions in such assignments which give preferences among the creditors selected, and requires the assignee to treat such provisions as nullities and distribute the effects pro rata. In case of a general assignment of all the debtor’s property to all his creditors, which I presume is the usual and common form of such instruments, this section will accomplish every thing that could be desired. It prevents all classification of creditors in such deeds — an evil much complained of, and doubtless within the mind of the legislature. But so long as partial assignments are permitted, and a debtor can transfer his property by such instruments to any portion of his creditors he desires, it is obvious that this section of the revised code of 1855 is totally ineffective to prevent preferences among creditors. The enactment may be always evaded by the selection of a single creditor or any number of creditors sufficient to exhaust the effects assigned. Indeed, if the legislature wish to strike at the root of the evil, they must go back to an old principle of the common law, which permits a debtor to prefer one creditor to another, and which privilege can be effected in a variety of modes other than those referred to in our statutes concerning assignments. Without however undertaking to suggest any views of our own as to the true policy which should prevail, and how far the legislature might with safety go in the abolition of this ancient principle, it is sufficient that the legislature have not as yet, in our opinion, abolished the right of debtors to make assignments to a portion of their creditors. If any such idea was entertained in the enactment of the 39th section referred to, it is so obscurely hinted at, and at the same time so plainly repugnant to previous provisions permitted to stand in the same statute, that the courts can not enforce it. To repeal a previous law, plain language must be used.

The judgment of the circuit court must be reversed upon any construction of this section. It was certainly not designed to annul the deed of assignment, where it was in other respects valid. The circuit court, in effect, held the deed void, and permitted a creditor outside of the deed to levy his execution upon the property assigned.

All the judges concur in reversing the judgment. Judge Richardson declines giving any opinion upon the proper construction of the 39th section.

The cause will be remanded.


author: Napton, Judge, Richardson, Judge.

text:
    Allen, Respondent, v. Allen’s Administrator, Appellant.
    1. Quere, "Whether the admissions of an administrator, a party to a suit, are admissible in evidence against the estate of which he is the administrator.
    2. If the administrator be a distributee his admissions are evidence.

      Appeal from Calloivay Circuit Court.

    Samuel Allen presented to the Calloway county court for allowance a demand against the estate of Samuel J. Allen, deceased. Adams, the administrator, was the husband of the widow of said Samuel J. Allen. The demand presented was the balance of an account of the sale of certain slaves belonging to Samuel Allen. The balance claimed was $770 with interest. In the account as presented, however, the interest was not calculated and placed at the foot of the account. Certain admissions of Adams were introduced in evidence, for which see below in the opinion of the court.

      Hardin, for appellant.
    I. Judgment can not be rendered for a greater amount of damages than respondent claimed in his account. (5 Mo. 422; 1 Mo. 96 ; 3 Mo. 39.) The court below committed error in its action upon the instructions. The statement of the administrator of the estate was not competent evidence. (2 Const. Rep. 757; 12 Wheat. 565; 7 Conn. 172; 6 Johns. Ch. 372.)

      Jones, for respondent.
    I. The admissions made by a party to a suit are competent evidence, whether the party stands upon the record in an individual or representative capacity. The 25th section of article 2d of the administration law allowing an administrator to be examined as a witness in favor of the estate, does not affect the common law rule of evidence allowing the admissions of parties to a suit to be given in evidence against them. In this case Adams was also interested in the estate as distributee, having married the widow of Samuel J. Allen, deceased. (1 Greenleaf’s Ev. § 171, 179.)
    II. In presenting a demand to the county court for allowance against an estate no technical form is necessary. The affidavit and account filed sufficiently apprised the administrator that the claimant asked not ouly for seven lrandred and seventy dollars, but also for interest. (Mills v. Bank of U. S. 11 Wheat. 441.) There is no error in the instructions as given and refused.
   Napton, Judge,

delivered the opinion of the court.

There is nothing, in our opinion, in the objection made to the form of the account. Although the calculation of the interest is not made and the sum total placed at the foot of the account, the affidavit shows that both principal and interest were demanded. The judgment is for the principal and interest in conformity to the claim.

The question in relation to the declarations or statements of the administrator, which were given in evidence, is one of more difficulty. The jury were directed by the court to disregard all these statements, except such as were statements of facts within the administrator’s knowledge. The declarations and acts testified to were, that the administrator handed to the witness (who was an attorney) the account sued on and the letters read in evidence, and requested him to present them to the county court for allowance; that, being administrator, he could not do so with propriety; that he thought the letters showed the .account overpaid, but he admitted that plaintiff was an honest man, and that the account of sales set out in the claim was correct. These statements, except so much of them as relate to the source from which the account and letters were obtained, do not of themselves convey any information to the jury as to the administrator’s knowledge of their truth, which was the criterion furnished the jury by which they were to be received or discarded. The jury might have no difficulty, under the instructions of the court, in considering the statements relative to the incompatibility of the claim with the letters, and in relation to the honesty of the claimant, as mere expressions of opinion and therefore excluded from their consideration. But how would they regard the statement relative to the correctness of the account of sales ? It did not appear whether the administrator had any personal knowledge on this subject or not, or if he had any, it did not appear how he had obtained his information, or at what time. Such a declaration coming from a mere trustee ought to have no weight with a jury, and very likely in this case it had none.' The court may have regarded it in this light and understood it as excluded, but it is unsafe as a general practice to submit a mass of testimony of this character to a jury, with a rule by which they are to separate for themselves the good from the bad, the competent from the incompetent evidence. It is impossible to say what influence the opinion of the administrator in relation to the integrity of the claimant may have exerted upon the jury. What things are to be regarded as facts and what opinions is sometimes a matter of very nice discrimination, and the court had better make the discrimination than leave it to bo made by the jury.

Whether the admissions of an administrator are evidence against the estate in suits wherein he is a party, is a question not probably of much practical importance in this case, but one of some interest and attended with considerable difficulties. Aside from any statutory provisions in this state, the general principle undoubtedly is, that the admissions of a party to the record are legitimate evidence against him. Where the party whose admissions were sought to be used is not the real party in interest, but has parted with his interest at the time of the admission, or is merely trustee for others, this general principle has been somewhat modified in this country; but in England and in some of the United States the doctrine is still adhered to in all its original strictness. There is indeed a painful confusion of authorities on this point in this country, so much so as to render any investigation into the matter as a mere question of authority utterly unsatisfactory. The inclination of this court, at least of late years, has been, I think, decidedly against the admission of the declarations of a party to the record who is only a nominal party and made after he had parted with his- interest in the subject matter of the suit. In relation to the admissions of mere trustees, made while they are clothed with that character, I have not met with any decision of this court. The question is a new one and may with propriety be decided with reference to our statutes and without regard to opinions or adjudications prevailing elsewhere.

That provision of our statute concerning administration which declares that an administrator or executor shall not be disqualified from testifying as to facts occurring anterior to his qualification, in actions where he is a party, does not appear to have any bearing upon this question. This section is merely designed to apply an ancient rule of evidence to the case of administrators when parties. The principle was already established that, for the benefit of the parties concerned, a competent witness to a transaction should not be rendered incompetent by subsequent events, and this principle is recognized and codified in our administration law. The admissibility of the administrator’s declarations against the estate or interest he represents, in actions wherein he is a party, depends upon another principle. Under the statutory provision the administrator can only testify to facts which came to his knowledge before he was clothed ;with the trust; his admissions, if binding under any circumstances, could only be so when made after his fiduciary character commenced, and by reason of his being a party to the suit. Adjudications may be found on both sides of this question. In Thompson v. Peters and others, 12 Wheat. 565, the court is reported to have decided that the admissions of an administrator would not be allowed to take a case out of the statute of limitations; though, when the opinion of Judge Marshall is examined, it will be found that the court regarded the declarations of the administrator as no admissions at all, and it was therefore useless to decide upon their admissibility, had they been sufficiently definite to have taken a case out of the statute. This doctrine is however clearly maintained in Peck v. Botsford, 7 Cowen, 172; but exactly the reverse is the decision in Emerson v. Thompson, 16 Mass. 427. In New York the acknowledgments of an administrator or executor were not allowed to bind the real assets in the hands of an heir or devisee; (Mooers v. White and others, 6 John. Ch. 360;) yet it is conceded in that case by Chancellor Kent that the executor might charge the personal estate by confession, just as any other trustee. The right of the administrator to confess away the interests of those he represents is totally denied in Ciples v. Alexander’s adm’r, 2 Comst. 767.

It is suggested that the general policy of our administration law forbids the administrator from affecting the interests of the estate by his admissions, and therefore, whatever may be the weight of authority elsewhere, they are incompetent here. The subject deserves consideration, but it is not deemed important to determine the general question in this case. The administrator in this case was also distributee of the estate, and as such his admissions were evidence, as this court determined in the case of Armstrong v. Farrar and others, 8 Mo. 628.

We do not perceive any objections to the second and third instructions offered by the defendant and refused by the court. The account presented contains no credit for the ten dollar bank note, nor the draft for 111.30, nor the five dollars which the thousand dollar check upon New York cost. Whether the $800 draft referred to in the account was designed to embrace the two drafts for |300 and |500 referred to in the letters, was a matter for the jury; but the hypothesis referred to in the defendant’s instructions might have with propriety been submitted to the jury along with that upon which the plaintiff’s instructions were based.

The other judges concurring, the judgment will be reversed' and the cause remanded.

Richardson, Judge.

I give no opinion on the question whether the admissions of an administrator are competent evidence against the estate he represents, even though he may also be a distributee.


text:
    Overton et al., Respondents, v. Webster et al., Appellants.
    1. In an action for the recovery of specific real estate, arising under the practice act of 1849, the issues to be submitted to the jury are those raised by the pleadings ; it is not proper in such case to direct any fact to be put in issue.
    2. The fact that an executor, in applying to a county court for an order directing the reservation of the personal estate and a sale of real estate for the ' payment of debts, omits to bring to the notice of the court the will of the testator of record in said court, in which he directs that all his debts should be paid out of the personal effects of his estate, will not of itself affect the executor with a fraudulent intent in procuring the order.

      Appeal from Jackson Circuit Court.

    This action was commenced in the year 1850. Plaintiffs are the heirs and widow of J esse Overton. Plaintiffs by an amended petition set forth substantially that said Jesse died in the year 1841; that said Jesse Overton made and published his last will and testament, appointing thereby John R. Swearengen and Aaron Overton to be the executors thereof; that said will was duly proved; that said Aaron Overton and J. R. Swearengen were duly qualified as executors; that said Jesse Overton died seized of certain real estate, and by his will directed and requested his executors to pay his debts out of his personal estate and effects; that the personal estate and effects that came to the hands of said executors were more than sufficient to pay and discharge all the debts due and owing by the testator; that said executors in April, 1843, presented a petition, verified by their joint affidavit, to the county court, accompanied by a list of debts, inventory, &g. ; that said executors, or one of them, to-wit, Aaron Over- ■ ton, with the design and fraudulent intent of becoming thereafter the purchaser of the lands in the petition and inventory mentioned, fraudulently represented to the county court by said petition that it would be for the interest and benefit of all persons interested in the estate of said testator to reserve from sale the personal property and to sell the real estate or so much thereof as should be necessary to pay the debts; that the county court, believing the representations contained in the petition, directed the personal estate to be reserved and the real estate to be sold for the purpose of paying the debts, said executors or one of them fraudulently omitting to present said will to the court, and more particularly that clause thereof directing and requiring the debts of the testator to be paid out of the personal estate and effects ; that said county court did not give any construction whatever to said will in making said order; that at the time of the making of said order a portion of plaintiffs were minors having no guardians; that amongst other real estate of said Jesse Overton was the tract in controversy, of which he owned an undivided half; that said undivided half, together with many other tracts, was ordered to be sold; that at the January term, 1844, of the county court a further order was made directing the sale of said undivided half for the payment of debts ; that the executors did proceed to sell said undivided half of the tract in controversy; that in pursuance of said fraudulent design and intention of purchasing said land at a very low price and in fraud of said will, said executor, Aaron Overton, did indirectly become the purchaser of said land at the sum of $345, being about three-eighths of the appraised value thereof; that said Aaron Overton was present at the sale and when the report of said sale was made to the county court, and did not and would not join his co-executor in making said report or in making the affidavit required to be annexed to the report ; that said report and affidavit were made by Swcaren-gen alone; that said Aaron Overton paid the sum for which said land sold (if paid at all) with his own proper money; that he conveyed or caused the same to be conveyed to defendant Maxwell, said ’ Maxwell paying him no consideration therefor; that at the time of the sale under the order of the court said Aaron Overton owned the other undivided half of the tract in controversy; that he fraudulently procured the sale of the other undivided half thereof to be made in violation of the express provision of the will, and in fraud of the rights of plaintiffs; that he became indirectly the purchaser thereof, at less than three-eighths of the appraised value, for his own private gain and advantage. Plaintiffs state that no title passed to or vested in the purchaser at the sale; that said sale was and is wholly void; that the right and title to the undivided half of the tract in controversy is vested in plaintiffs. “ Therefore, they ask (as they have asked in their original petition) judgment for the possession of the undivided half of said land in the petition described, as well as judgment for their costs.”
    Defendant Maxwell answered the amended petition ; Webster, his co-defendant, put in no answer.

      The jury rendered the following verdict upon various issues framed and submitted to them at the instance of the plaintiffs : “ Issue 1st. We the jury find that Aaron Overton did fraudulently procure the order of sale of the undivided half of the land in controversy mentioned in the petition, for the purpose of becoming the purchaser thereof indirectly; and we find that John R. Swearengen had no part or lot whatever in the fraud. Issue 2d. We the jury find that Aaron Over-ton did indirectly purchase said land in the petition mentioned. Issue 3d. We the jury find that said defendant Maxwell was privy to the fraud in procuring the order of sale of said land, and had knowledge of the fact. Issue 4th. We the jury find that Aaron Overton did cause the land to be conveyed to defendant Maxwell without any consideration except the purchase money as promised by Clarkson. Issue 5th. We the jury find that Thomas Gr. Clarkson did not, in good faith and for his own use, become the purchaser of said land at the sale, under the order of the Jackson county court, by Swearengen and Overton, as executors of the estate of Jesse Overton, deceased. Issue 6th. We the jury find that said Clarkson did purchase said land for Aaron Overton and not for himself; we find' that Clarkson had no knowledge of the fraud in procuring the order. Issue 7th. We the jury find that although the defendant Maxwell has a conveyance from Clarkson, yet we believe the land to have been purchased by Clarkson for the said Aaron Overton. Issue 8th. - We the jury find that Swearengen and Aaron Overton, as the executors of the estate of Jesse Overton, deceased, did make and acknowledge a deed to Clarkson for said tract of land, as alleged in Maxwell’s answer, but can not say that said deed was delivered.”
    It is deemed unnecessary to set forth the evidence introduced or the numerous instructions given to the jury.

      Smart & Sheley, for appellants.
    I. Every principle involved in this case, except as to fraud, was decided by this court in Overton v. Johnson, 17 Mo. 442. The county coui’t bad jurisdiction over the matter. It necessarily gave a judicial construction to the will of Jesse Overton. That order is conclusive against plaintiffs. (Mc-Nair v. Biddle, 8 Mo. 264 ; 9 Mo. 124 ; 2 How. 335 ; 5 Mo. 309 ; 11 S. & R. 460.) The court erred in instructing the jury that the will of Jesse Overton directed that his debts should be paid out of his personal property. The conversation of Aaron Overton with Clarkson was also improperly admitted. The county court judges were also improperly permitted to testify as to what occurred in the court. (12 Mo. 598.) The court also erred in refusing the instructions asked by defendant. The verdict was not warranted by the evidence.
    Hicks, for respondents,
    cited R. C. 1835, p. 621, § 34; 15 Johns. 121; 2 Coke, Rep. 78; Dougl. 421; 2 Sand. 159; 1 Caines, 461; 2 Pet. C. C. 365; 12 Wend. 41; 1 Stark. Ev. 39 ; 6 Mass. 74.
   Scott, Judge,

delivered the opinion of the court.

The difficulties of this case arise mostly out of the manner in which it has been conducted. In the very threshhold of it we are beset with the obstacle whether it was an action which under the act of 1849 was triable by the court or by a . jury. On the latter supposition we do not see by what authority the court directed issues to be submitted to the jury. When an action is a proper one to be tried by a jury the issues are submitted as they are made by the pleadings, and a general or special verdict may be found. In such cases the court has no authority to direct any other issue or issues than those which have been already framed by the pleadings; The parties, it is true, may waive a jury and have the action tried by the court, but that was not done here. This suit would seem to be for the recovery of specific real property, yet if that was the aim of the plaintiffs it does not appear what advantage they proposed by the amendment of their petition. The petition as amended, at first sight, would seem to be for the attainment of equitable relief, but the omission of proper parties for that end, and the prayer of it, leaves the cause where it was before it was filed. Since the present practice act has been in force, parties seem to imagine that they have a wonderful advantage in involving in uncertainty and doubt the object to be obtained by their pleadings. But we do not see how they can possibly be benefitted by such a course. If the courts will not compel them so to frame their pleadings before a trial is begun, by amendment if necessary, as to show what they aim at, how can they determine in what manner a cause is to be tried, whether by the court or by a jury ? This omission leads to great embarrassment and usually results in a reversal of any judgment the plaintiff may obtain. The case before us seems to have been regarded as one to be tried by the court, and a great many issues were made for trial by a jury ; while the defendants seem to have looked upon it as one to be tried by a jury without any other issues than those presented by the pleadings, and hence framed all their instructions on that supposition; and there is nothing but a jumble and confusion in the record. The questions of law involved are plain and simple; all the difficulties arise or grow out of the manner in which the proceedings have been conducted.

As the record now stands, we must regard this as an action to recover possession of a specific parcel of land; consequently it was a proper one for a jury trial. Yiewed in this light, we are of opinion that in the trial of the cause below too much importance was attached to the circumstance that the will of Jesse Overton was not read on the application for the reservation of the personal and the sale of the'real estate. As the only question before the jury was one of fraud in the sale by the executors or one of them, it was a matter of importance to have that question fairly submitted to the jury; for if the jury was once improperly impressed with the idea that a fraud was practiced by Aaron Overton in procuring an order for the sale of the real estate, they would necessarily enter with that impression on their minds on the consideration of the facts that occurred subsequently with a view to carry that order into effect; and the fact that fraud was used in procuring the order of sale being once unduly impressed on them, they would readily impute fraud in his future conduct in carrying that order into execution. It must be borne in mind that fraud in the sale alone, without any connection with the act of procuring an order, would be sufficient to avoid the sale. But if the mind is once unduly impressed with the belief that a fraud was practiced in obtaining an order of sale, it will much more readily impute fraud to subsequent conduct in carrying that order into effect.

We can not see how the mere omission of itself to read the will of Jesse Overton on the application for the sale of the real estate can affect Aaron Overton with a fraudulent intent. As the will directed the payment of the debts out of the personal estate, it is maintained that the county court erred in reserving the personal and ordering a sale of the real estate. But how is A. Overton to be affected by the errors of that court ? If the order was erroneous it might have been reversed on an appeal. The will was recorded among the records of the court, and was open to the inspection of the judges. By what principle was Aaron Overton bound to present the will to the court ? Is it a presumption of law that he was acquainted with all its contents ? He, it is said, was no scholar and was only one of the executors, and all the business requiring any scholarship was entrusted to his co-executor, he only attending to the out-door matters connected with the administration. If A. Overton was apprised of the provision in the will concerning the payment of debts, and he believed that a knowledge of that provision by the members of the county court would have prevented any order of sale, if he withheld the information for fear of such a consequence, or if he used any practices to hinder the judges from being informed of the provision, such conduct would be evidence of fraud to go to the jury. The jury found that there was no fraud in the co-executor in procuring the order of sale, although he prepared the papers necessary for the application, and actually presented it to the court, and although he must be supposed to be as coirversant with the contents of the will as Aaron Overton. We are then of the opinion that the conduct of the court in permitting the evidence of the county justices to be heard, followed by the instruction relative to the provision of the will concerning the source from which means were to be obtained to pay the debts, was calculated to mislead the jury and unduly impress them with the idea that a fraud was practiced by A. Overton because the will was not read.

We are not of the opinion, however, that it was necessary for the plaintiffs to have shown that a fraud was practiced in obtaining the order for the sale before they should have been entitled to a verdict. Although the order of sale may have been fairly obtained, yet a subsequent sale under such an order will for fraud and violation of law be avoided.

We come nest to the question of the admissibility of Clark-son’s evidence against Maxwell. As we understand this case, it goes on the assumption that the sale was void by reason of the fraud and violation of law involved in it; that, although Aaron Overton was the chief instrument in affecting the fraud, yet the defendant Maxwell was a party and privy to it; that Aaron Overton fraudulently and in violation of law became the purchaser of the land through the instrumentality of Clarkson for Maxwell, and that Maxwell was aware of the fraud and participated in it. Under this view it was noces-, sary to show that Overton was guilty of a fraud. Certainly the evidence was competent to that purpose and therefore was admissible. The declarations of Overton, nothing more appearing, would not be evidence against Maxwell. But after evidence tending to show fraud on the part of Overton had been given, Maxwell afterwards becoming a party to the transaction, it was competent to submit his acts and conduct to the jury as evidence that he was privy to the fraudulent designs of Overton. The depositions of Swearengen and Clarkson (independently of what he relates as said by Over-ton) furnish evidence proper to be submitted to a jury to show that Maxwell was privy to the fraud.

Judge Richardson concurring, the judgment will be reversed and the cause remanded. Judge Napton did not sit.