Sweet v. Jeffries , 67 Mo. 420 ( 1878 )

Napton, J.

This suit was originally brought by Sweet, administrator of R. R. Jones, sheriff of Franklin county, upon a note given by Jeffries to Jones in consideration of land sold by him as sheriff, to Jeffries, under a decree of partition. This suit was brought in 1867, upon the note made in 1857, and due in twelve months after date. In April, 1869, more than ten years after the maturity of the note, Maupiu, Breckinridge and Whitson, who were securities on Jones’ bond as sheriff, were allowed to be made parties plaintiff", upon the ground that in a suit brought by the cestue que trust of Jones against them, they were compelled to pay the amount of the note, Jones being dead and his estate insolvent. This suit and its result were in evidence in this case, from which it appeared that the defendants in it denied that their principal had collected the money, and upon this issue being found against them, judgment was given for the cestue que trust, and they had the money to pay.’ It seems that Jeffries was clerk nndR. R. Jones sheriff of Franklin county, and that when Jeffries’ note became due, Jones was largely indebted to Jeffries for fees collected by him, and he therefore made Jeffries a deed for the land sold, and agreed to hand over the note when they had final settlement. Jones died before such final settlement, and his estate being insolvent, the plaintiffs in this case, his securities, had to pay the note and asked to be subrogated to the place of the original plaintiff, Jones’ administrator, which was allowed. The defendant pleaded the statute of limitations, and also the payment to Jones.

1. STATUTE OF LIMITATIONS: new parties: subrogation. ■ We have been unable to conjecture upon what grounds the plea of the statute was overruled. The substituted plaintiffs virtually commenced a new .action —one in equity, instead of the action at law by Sweet upon the note, and the bar was complete, before the substitution was allowed.

2. TRUSTEE: cestuique trust: trustee's sureties. Apart from this defense, the judgment in the suit against the sheriff and his securities constituted a complete bar to this action. The defendants in that case pleaded that Jones, their principal, had not collected the money, and issue was taken on that plea and found against them. The judgment, in truth, could have been based on no other grounds. Eor if Jones had never collected the note, the recourse of the eestue que trust was obvious, as there was no pretense that Jeffries was not perfectly solvent and the note had never been handed over to him. Although Jones had no right, as trustee, to make such an arrangement with Jeffries, the eestue que trust sanctioned it, and proceeded on the hypothesis that he had received the money, and established their claim on that basis. What claim then did the sureties of Jones have against Jeffries to recover the money which he had already paid to or settled with Jones?- When this case was before this court in 1871, the facts now appearing in the record seem not to have been before the court. It is clear that the .plaintiffs, apart from the bar of the statute of limitations, have no equitable claim against the defendant, The judgment of the circuit court is therefore reversed. ■

Reversed. .;