Grigg v. Lively

^* Headnote 1. Executors and Administrators, 24 C.J., section 949; 2. Executors and Administrators, 24 C.J., section 958. This is a suit to recover back money paid under a contract to purchase land. Plaintiff recovered and defendant appealed.

November 20, 1915, plaintiff entered into a contract in writing with H.M. Zimmerman and C.E. Elliott, owners, for the purchase of about fifty-five acres of mining land in Jasper county at the price of $600 per acre. At the same time a contract was entered into whereby plaintiff was to do certain drilling, etc. The tract was to be surveyed, abstract and title made satisfactory, and purchase price paid by March 22, 1916. Zimmerman, who resided in Seattle, Washington, died December 19, 1915, leaving only collateral heirs, and defendant, on March 6, 1916, was appointed administrator of the estate in Jasper county. The time for completing the contract and paying the full purchase price was extended from time to time, the last extension expiring March 4, 1917. In the interim between the time of Zimmerman's death, and the expiration of the last extension plaintiff paid $15,000 on the purchase price. It seems that the $15,000 was paid to Lively, and he turned over $7500 thereof to Elliott, and retained $7500 as the administrator of the Zimmerman estate. Prior to April 3, 1917, Elliott made a deed to his one-half undivided interest and placed the same in a bank to be delivered when the balance of the purchase price was paid. All the Zimmerman heirs were adults, but for some reason, not disclosed in the record, plaintiff was unable to get a deed to the Zimmerman interest. April 3, 1917, plaintiff filed suit under section 168, Revised Statutes 1919, in the probate court against the defendant administrator for specific performance. This cause in the probate court passed until the February term, 1918, at which time one of the Zimmerman heirs appeared and, under section 174, Revised Statutes 1919, filed a motion to transfer to the circuit court, which motion was granted and the cause transferred. By this time plaintiff had been drafted into the army, and the cause for specific performance was passed in the circuit court indefinitely. It might be stated here, however, that there was no particular reason to pass the cause indefinitely, since plaintiff was only nominally interested, and the real party in interest, and the one who was furnishing the money, and who expected the benefits of the deal, was at all times on the ground, and conducted and controlled plaintiff's course of conduct with reference to the purchase of the land.

After the cause for specific performance was transferred to the circuit court matters rested, so far as moves in court were concerned, until May 25, 1921, at which time plaintiff dismissed his cause for specific performance, served notice of rescission of the contract to purchase, and demanded the return of the amount paid on the purchase price.

The cause here was commenced against Lively as administrator, and Lively, individually, and also against the executrix of the estate of Elliott, who had died prior to the filing of the present suit. Dismissal was made, however, as to Lively, individually, and as to the estate of Elliott, and judgment rendered against Lively as administrator of the Zimmerman estate for $7500.

As we view this record, these questions are presented. Defendant contends: (1) That plaintiff is barred under section 182, Revised Statutes 1919; (2) that whatever demand or cause of action plaintiff may have had was against the estates of Zimmerman and Elliott jointly, and that suit would not lie against the Zimmerman estate alone; (3) that plaintiff elected to proceed for specific performance, and that he could not thereafter abandon that remedy and pursue a different one.

Section 182 provides that all demands against an estate, with certain exceptions not material here, shall be exhibited within one year from the date of the grant of letters and publication of notice, and unless so exhibited shall be forever barred. If this statute can be here invoked, then plaintiff is barred. Plaintiff sought in his petition to avoid this statute by pleading conclusions to the effect that defendant was holding the money paid on the purchase price in the nature of a trustee. If such were the case the statute might not be invoked (Bramell v. Adams,146 Mo. 70, 47 S.W. 931), but Lively, administrator, is no more holding this money in the nature of a trustee than would Zimmerman be so holding it were he living, and holding it. The money was paid under the contract, and was paid as a part of the purchase price. This cause cannot be considered as one, the purpose of which is to reach the property itself as was the case in Bramell v. Adams, supra, but this cause is to establish a liability against the Zimmerman estate, which liability would be personal against Zimmerman if he were living. This liability was in the beginning contingent, and so remained until March 4, 1917, the date of the expiration of the last extension. At that time the contract was breached by the vendors, and plaintiff's right to sue for the money paid or for specific performance became absolute. The contingency which matured such liability was the failure to convey as per the contract and extensions, and upon the happening of this contingency the liability became absolute. Since this contingency did not happen until after the grant of letters in the Zimmerman estate, and publication of notice, plaintiff should have a year from the happening of the contingency to present his demand. [Binz v. Hyatt, 200 Mo. 299, 98 S.W. 637.] The demand not having been presented, nor suit filed within the year from the happening of the contingency, it is our conclusion that plaintiff is barred by the special limitations in section 182, Revised Statutes 1919. Having reached this conclusion it is unnecessary to rule on the remaining two propositions presented.

The judgment below should be reversed, and it is so ordered.Cox, P.J., and Farrington, J., concur.