State ex rel. Patterson v. Tittman , 54 Mo. App. 490 ( 1893 )

Biggs, J.

— Action on a guardian’s bond. The facts 'are undisputed. In December, 1874, John B. Johnson, curator of the estate of the relator (who was then a minor of about ten years of age), resigned his trust, and W. H. Horner, now deceased, was appointed in his stead by the probate court of the county of St. Louis. Horner accepted the trust, and he as principal, with the appellants, J. B. C. Lncas and William Lncas as his sureties, executed a bond conditioned that he would, “truly and faithfully discharge the duties of his office of curator according to law.”

A principal note of Phebe Hunt for $5,000, dated January 27, 1871, payable three years after date, and one semi-annual interest note for $200 of the same date, were among the property turned overby Johnson to Horner, and to secure them Phebe Hunt had given a deed of trust on certain real estate in the city of St. Louis. There was also another note of Phebe Hunt for $6,385.34, dated October 26, 1874, payable three years after date, and three annual interest notes for $638.33 each, to secure which another deed of trust was given on the same property and certain other real estate in said city.

The trustee in the first deed of trust having refused to act, Horner as curator on May 20, 1881, applied to the circuit court of the city of St. Louis for the appointment of another trustee, which was done, the court appointing R. D. Lancaster.

Default having been made in the payment of all the notes, the property was advertised for sale under both deeds of trust, the sale to take place June 20, 1881.

On June 17, 1881, Horner represented to the probate court that the property was advertised for sale, that the total indebtedness amounted to about $12,000, and that, unless he would bid on the property, he believed that it would be sold at a sacrifice. Thereupon the court by an order entered of record authorized Horner to buy the property for his ward at the sale, provided it did not sell in excess of $10,000. Horner bought under both deeds of trust for $2,500. He received deeds from both trustees conveying to him individually the entire property; in one of the deeds, however, was embodied the order of the circuit court reciting the fact that Lancaster had been appointed trustee at the instance of Horner as curator of the estate of Charles L. Patterson. The deeds of the trustees also recited the fact that J. B. Johnson, curator of •Charles L. Patterson, was the original beneficiary in both deeds of trust.

On June 25, 1881, Horner executed a deed of trust to R. D. Lancaster as trustee for the State Savings Association of St. Louis, whereby he conveyed the property so purchased by him to secure the payment of his individual debt, amounting at the time to $2,500.

On June 17, 1882, Horner executed and placed on record a quitclaim deed conveying the property to the relator; no reference, however, was made in this deed to the deed of trust previously given to secure the note held by the State Savings Association.

On June 21, 1882, Horner filed in the probate •court his seventh annual settlement as curator, in which he set forth the purchase of the land for his ward for the sum of $2,500, and the subsequent conveyance by him of the property to the relator. The statement contained no reference to the incumbrance which •the curator had placed on the property.

On August 16, 1885, the relator reached his majority, and on October 23, 1886, Horner died without having made a final settlement of his curatorship.

On November 9, 1886, letters of administration on the estate of Horner were granted to the defendant, Eugene O. Tittman, notice of which was afterwards published as required by law.

On January 10,, 1887, Tittman, as administrator of Horner, made a final settlement of the curatorship. At the time this settlement was made, neither the relator nor Tittman had notice of the incumbrance on the property, and therefore the relator made no objection to the approval of the settlement.

In April, 1887, Lancaster advertised the land for sale under the deed of trust given by Horner, and by that advertisement the relator learned for the first time of the fraud that had been practiced by Hoiner. At this juncture the relator brought a suit in equity in the circuit court of the city of St. Louis to enjoin the sale and to cancel the deed of trust, and also to set aside the final settlement of the curatorship. The circuit court by its decree set aside the settlement, and also decreed a cancellation of the deed of trust. The holders of the note secured by the deed of trust appealed to the supreme court, where, on February 23, 1891, the judgment of the circuit court was affirmed. Patterson v. Booth, 103 Mo. 402.

It also appears from the evidence that, either before or just after the relator filed the suit-in equity, he notified the appellant of the institution of the suit, and he required him to appear and conduct the suit. It is conceded that the appellant’s attorney assisted in the conduct of the case, but left the burden of the work to the relator’s attorney. In the prosecution of the suit the relator paid $500 counsel fees, and incurred -other necessary expense amounting to $103.65.

The relator claimed that the foregoing facts, which were stated in the petition, constituted a breach of the conditions of the bond, in that Horner had impaired the title to the trust property in his attempt to charge it with the payment of his individual debt, and that the defendants were answerable to the relator for all proximate damages resulting from this breach of trust, including counsel fees and other necessary non-iaxable costs paid by him in the prosecution of the equity suit.

The defendants denied the alleged breach of the bond, and that they were liable for counsel fees and ■other non-taxable costs as alleged; .'and they pleaded in bar of tbe action the failure to present the alleged claim for allowance against the estate of Horner within two years after the grant of letters. The replication put in issue the new matter set forth in the answers.

The court sitting as a jury rendered judgment against both defendants for the penalty of the bond, to be satisfied by the payment of $644.37, which was the amount of the attorney’s fees and non-taxable costs paid by relator, with six per cent, interest thereon from the date of payment. The defendant Lucas only has appealed.

The execution by Horner of the deed of trust, in which he attempted to charge the real estate of his ward with the payment of his individual debt, was a breach of the conditions of his bond. By this wrongful and unlawful act he committed waste. Any act of his which tended to decrease the value of the real estate held by him for his-ward, or which impaired the evidence of title thereto, was waste for which his estate and the sureties on his bond are liable. Bond v. Lockwood, 33 Ill. 212; Eield’s Law of Gruardians, sec. 98, and authorities cited.

Did the court err in the assessment of the damages is the next question.

The recovery for the violation of contracts of indemnity includes all damage which is the natural or proximate result of the breach. The supreme court in the case of Kansas City Hotel Co. v. Sauer, 65 Mo. 279, held that the liability of the obligors for the violation of such a contract is measured “by a sum sufficient to put the plaintiff in as good plight as if defendant had kept his covenant.” This is the general rule, and we can see no good reason for adopting a different rule in actions on bonds of guardians or curators. The doctrine of strictissimi ju/ris, which is here invoked for the protection of appellant against liability for the special damages assessed, has application only in determining the liability of a surety in the first instance, and not to the extent of such liability when once determined. Fisse v. Einstein, 5 Mo. App. 78; Yeatman v. O’Reilly, 12 Mo. App.* 568.

Now, it must be conceded that the institution of the equity suit was made necessary by the wrongful act of Horner; therefore the expenses necessarily incurred by the relator must be considered as the natural or proximate result of the breach of the bond. As it is admitted that the defendant had notice of the suit, that he was given an opportunity to take charge of its prosecution, and that its successful prosecution redounded to his benefit, we think the action of the court in the assessment of damages was clearly right. It met the equities of the case and gave full idemnity for the wrong done. We also think that the .action of the court is sustained by analogous cases.

The case of Johnson v. Meyers, Executor, 34 Mo. 255, was an action for a breach of warranty of title to a slave. The complainant was compelled to defend a suit brought against him for the recovery of the slave. The court held that he could recover his costs in defending this suit, if he gave his vendor notice of it.

In the case of Kansas City Hotel Co. v. Sauer, supra, the plaintiff sued for a violation of the covenants in a bond of indemnity. The bond was given to save the plaintiff harmless from certain mechanic’s lien claims. The recovery in the action included attorney’s fees and other expenses paid by plaintiff in defending against the claims, and the supreme court sustained the judgment.

In the case of Ryerson v. Chapman, 66 Me. 557, it ' was held that the grantee in a deed of general warranty, after eviction by one having superior title, is entitled to recover in an action on the covenants the amount of all judgments obtained against himself by the party dispossessing him, together with all reasonable expenses of litigation, including counsel fees.

Mr. Sedgwick says: “Where a plaintiff has become involved in another suit by defendant’s acts, he should recover the amount of reasonable expenses in which he has become involved, and there seems to be no reason for distinguishing between counsel fees and other proper costs and expenses. Sedgwick on Damages [8 Ed.] sec. 236.

The defense of the special statute of limitations, barring the allowance of claims against an estate, unless presented within two years after the grant of letters, is without merit. It may be true that there was a technical breach of the bond the moment Horner executed the deed of trust, but in contemplation of law the cause of action did not accrue to the relator until his right to recover substantial damages existed. Tenny’s Adm’r v. Lasley’s Adm’r, 80 Mo. 664; Chambers’ Adm’r v. Smith’s Adm’r, 23 Mo. 174.

In Chambers Adm’r v. Smith, Adm’r, supra, the suit was brought against an estate for damages for the breach of the covenant of seizin, contained in a deed. The suit was instituted more than three years after the grant of letters. The court in disposing of a similar plea said: “In reference both to the limitation and to the person entitled to the benefit of the covenant, we look in a case of the 'present character to the right of substantial recovery, and will not hold a party barred by the lapse of time which ran before he was allowed to recover (for we make no destinction here between no recovery and a mere nominal one).” This, language is applicable to the case at bar; for at no time could the relator have recovered anything in excess of nominal damages until the final determination of the equity case in the supreme court in February, 1891. We must therefore rule this assignment likewise against the appellant.

The judgment of the circuit court will be affirmed.

Judge Rombauer concurs. Judge Bond dissents.