Brooks v. Mastin , 69 Mo. 58 ( 1878 )

Henry, J.

It is not alleged in the first count that the

note sued on was ever in the possession of plaintiff, or that it has not been paid to his predecessors, or their assignee. For aught that appears in the .petition, it may have been paid to the former administrators, or assigned by them to an innocent purchaser. Conceding that the execution of a note for a pre-existing debt, is not a payment, as held in the eases of the Steamboat Charlotte v. Hammond, 9 Mo. 60; McMurray v. Taylor, 30 Mo. 266, and Howard et al., v. Jones, 53 Mo. 584; yet the party relying upon that principle, in a suit upon the original contract, must produce the note for cancellation, as was done in those cases, or allege a sufficient excuse for its non-production. He cannot sue upon the original cause of action and also retain the note, or other security given for it. It is true, the plaintiff alleges that the note has been lost, mislaid or destroyed, but it is not stated that this occurred while he was in possession of the note. In this count it is alleged that the amount of the note is due to plaintiff, but this is upon the theory that no matter where the note is, or whether paid to the former administrators or not, the debt is a part of the assets of the estate, and'plaintiff is entitled to recover. It is pleading a conclusion of law, and a conclusion ílot predicable of the facts alleged. In Cook’s Executor v. Holmes, 29 Mo. 61, the eourt'held that upon Cook’s death the legal title to the note .vested in his executor, and the suit was properly brought in the name of the executor of Cook. Thomas and Thomas v. Relfe, Admr., 9 Mo. 373, is to the same effect, and although overruled by Lessing v. Vertrees, 32 Mo 431, it has not been considered as overruled on that point. Smith’s Admr., v. Monks, 55 Mo. 107; Rittenhouse v. Ammerman, 64 Mo. 197.

With regard to the second count, most of the foregoing remarks are applicable. The former administrators collected -the amount on deposit with defendants, and surrendered the certificates of deposit. A portion of the amount, after the certificates were surrendered, was placed to their individual credit, and this was a conversion of that amount to their own use, and, if not accounted for, they and their securities were liable on their bond. Harney, Admr. v. Dutcher, 15 Mo. 90. If the former’ administrator's had collected from defendants a note due the estate, and then deposited the amount with defendants as bankers, upon what principle could their successor, in a proceeding at law, recover that money from defendants ? This, in substance, is the transaction disclosed by the second count. It is not alleged the balance deposited with defendants has not been paid by the defendants to plaintiff’s predecessors, aud that they have that amount of money in their hands belonging to the estate. The doctrine that trust money, or property, may be followed wherever found, has no application to the facts alleged. If suit were instituted to recover the note from one in possession of it, or the money from one who had collected it, or the balance of the deposit, alleging that it was still in the hands of defendants, that doctrine might be invoked, but this is not such a proceeding. Plaintiff relies upon a legal right, where there is no privity betwixt him and the defendants, and alleges no facts which would authorize a court of equity to grant him relief, on the ■ principle that such courts will follow trust property into the hands of any one who may hold it. In the second count it is also alleged, as in the first, not that defendants have not paid the balance to plaintiff’s predecessors, which defendants might have done, but that it is due to plaintiffs, a conclusion of law not warranted by the facts alleged.

The judgment of the law and equity courtis affirmed.

The other judges concur.

Affirmed.