US SUPREME COURT DECISIONS

The lawful representative of a deceased person who ratifies sales of property made by an agent of executors in their own wrong may maintain an action at law against the agent for money had and received to recover the proceeds of the sale in his hands.

The ratification extends to all the dealings on the subject between the agent and his principals, and if the principals have converted the simple debt into a judgment, the lawful representative is bound by it.

In Missouri, the excuse for avoiding the operation of the statute of limitations that the debtor by absconding or concealing himself prevented the commencement of an action is available in actions at law as well as in equity. § 3244, Rev.Stat.Mo.

This bill was filed by the appellant on May 11, 1880. Its material allegations were as follows:

The appellant was born in 1806, and was the daughter of the late Daniel Clark of the City of New Orleans. On July 13, 1813, Clark duly executed his last will and testament, by which he devised and bequeathed to the appellant all his estate. He died August 16, 1813. Appellant did not know that she was the daughter of Clark until 1834. On June 18 of that year, she propounded for probate in the Parish Court for the Parish of Orleans, Louisiana, chanrobles.com-redchanrobles.com-red

Page 111 U. S. 396

his last will, and after a litigation of more than twenty years it was admitted to probate on February 23, 1856. In the meantime, in the year 1827, she had become of age; in 1832 she was married to William W. Whitney, who died in 1838, and in 1846 she was married to Gen. Edmund P. Gaines. Gen. Gaines died in 1858, and appellant has since remained a widow.

A short time after the death of Clark, in 1813, Richard Relf and Beverly Chew

"began to act as executors of his estate in their own wrong, and without authority of law, under a will of Clark executed in the year 1811, which had been revoked by his will of 1813."

By power of attorney they appointed Samuel Hammond, the defendant's intestate, their agent to sell and convey the lands belonging to the estate of Clark lying in the State of Missouri. Hammond, prior to April 9, 1819, sold lands, and received therefor, over and above the credits and commissions to which he was entitled, the sum of $6,841.80. Relf and Chew sued Hammond for the money so received by him, and in August, 1819, recovered a judgment against him therefor. On October 8, 1823, an execution was issued on the judgment and levied on lands of Hammond, being the north half of New Madrid, survey No. 2,500, which were bought in by Relf and Chew, and the purchase money thereof, to-wit, $427.77, credited on the judgment. Hammond was a resident of Missouri from about the year 1815 until December, 1824, when, being insolvent and indebted to the estate of Clark for the balance due on said judgment, he fraudulently absconded and secretly left the State of Missouri, concealing himself from appellant by traveling to places unknown to her. He went to the State of South Carolina, where he lived until his death, which took place in August, 1842. No letters of administration were taken out on the estate of Hammond until October 25, 1879, when property of his estate in the State of Missouri having been discovered, letters were granted to the appellee, Charles Miller, by the Probate Court of the City of St. Louis.

The prayer of the bill was that the court would decree that the estate of Hammond was indebted to appellant in the sum chanrobles.com-redchanrobles.com-red

Page 111 U. S. 397

of money demand, namely, $6,841.80, with the interest thereon, and that she was equitably entitled to recover the same in this suit. The defendant filed a demurrer to the bill on the following, among other, grounds: (1) because the case stated in the bill is one of which a court of equity has no jurisdiction, and (2) because the bill shows that a suit had been brought by those recognized by the court as the lawful representatives of Daniel Clark, and that more than sixty years ago, judgment had been rendered therein against Hammond for the same money for which this suit was brought, and that such judgment had never been vacated or reversed. The circuit court sustained the demurrer and dismissed the bill, and the complainant appealed.