Gaines v. Miller/Opinion of the Court

The demurrer was properly sustained on both grounds. The theory of the bill, as appears from its averments and as it is stated by counsel for appellant, is that appellant is the proper party to sue, in her own name, for the proceeds of the lands of her father's estate, sold by Hammond in 1819 under power of attorney from Relf and Chew, and that by bringing this suit she affirms and ratifies the sale. The appellant having ratified the sale, the only obligation which can rest upon Hammond's administrator is to pay over to the appellant the money received by Hammond as the consideration of the sale. It is, therefore, simply a case of money had and received by him for the use of appellant, and a declaration in assumpsit on the common counts would have fully stated the appellant's cause of action. Whenever one person has in his hands money equitably belonging to another, that other person may recover it by assumpsit for money had and received. Pickard v. Bankes, 13 East, 20; Spratt v. Hobhouse, 4 Bing. 178; Israel v. Douglas, 1 H. B1. 239; beardsley v. Root, 11 Johns. 464; Hall v. Marston, 17 Mass. 575; Claflin v. Godfrey, 21 Pick. 1. The remedy at law is adequate and complete.

There is no averment in the bill of complaint of any ground of equity jurisdiction. No trust is alleged, no discovery is sought. The appellant has no lien on the property of Hammond's estate, and avers none. The only semblance of a fraud alleged is that Hammond fraudulently absconded, and secretly left the state of Missouri, concealing himself by traveling in places unknown to the appellant. But this averment does not relate to the cause of action. It is only made as an excuse for not bringing the suit at an earlier time, and to take the case out of the bar of the statute of limitations. The law of Missouri (Rev. St. § 3244) provides that if any person, by absconding or concealing himself, prevent the commencement of an action, such action may be commenced within the time limited by the statute, after the commencement of such action shall have ceased to be so prevented. The excuse made by appellant for not sooner bringing her suit was, therefore, available in an action at law. Having found assets of Hammond's estate in Missouri, and an administrator having been appointed, an action at law was the plain and adequate method for the recovery of the appellant's rights. The circuit court, sitting as a court of equity, had, therefore, no jurisdiction of the case. Hipp v. Babin, 19 How. 271.

The second ground of demurrer is also well taken. The appellant, by ratifying the sale made by Relf and Chew, through their agent, Hammond, ratified the acts of Relf and Chew in respect to the purchase money received by Hammond. If Hammond, as their agent, had paid over to them the money received from the sales made by him, the appellant could not, having ratified the sale, repudiate the payment. If a principal ratifies that which favors him, he ratifies the whole. Skinner v. Dayton, 19 Johns, 554; Odiorne v. Maxcy, 13 Mass. 178; Menkens v. Watson, 27 Mo. 163; Attwood v. Small, 6 Clark & F. 232. By ratifying the sale, the appellant places herself in the position of Relf and Chew, and Hammond has the same rights against her as he had against them. Relf and Chew having sued Hammond and recovered judgment against him for the money received by him, the demand for the money was merged in the judgment. They could not bring suit on the claim for the money. Biddleson v. Whitel, 1 W. Bl. 507; Wayman v. Cochrane, 35 Ill. 152. Neither could the appellant. Their only remedy was to enforce the judgment or to bring another suit upon it. If the judgment was paid, Hammond was discharged from any demand either by Relf and Chew or the appellant. There is a conclusive presumption of law that the judgment has been paid. By an act of the territorial legislature passed January 20, 1816, the common law of England was adopted as the law of the territory of Missouri. By the common law, the lapse of 20 years, without explanatory circumstances, affords a presumption of law that the debt is paid, even though it be due by specialty. Oswald v. Legh, 1 Term R. 270; Lesley v. Nones, 7 Serg. & R. 410; Jackson v. Wood, 12 Johns. 242; Best, Pres. § 137. And, by the Revised Statutes of Missouri of 1835, (page 396,) it was provided as follows: 'Every judgment and decree of any court hereafter rendered or made, shall be presumed to be paid and satisfied after the expiration of twenty years from the time of giving such judgment or decree, and every judgment and decree rendered or made at the time this act shall take effect, shall be presumed to be paid and satisfied after the expiration of twenty years from the time this act shall take effect.' This provision has been substantially continued in force to the present time, (1 Rev. St. Mo. § 3251,) and forms a part of the settled jurisprudence of the state. In the case of Clemens v. Wilkinson, 10 Mo. 98, it was held by the supreme court that, as to judgments rendered prior to the act of 1835, the presumption of payment after 20 years, raised by the common law, continues unaffected by that act, which, as to such judgments, is only cumulative. This presumption is a rule of evidence and not a limitation, and is not subject to the exceptions and incidents of an act of limitation. Cape Girardeau v. Harbison, 58 Mo. 90; Smith's Ex'r v. Benton, 15 Mo. 371. If, therefore, 20 years after its date suit had been brought against Hammond, in his life-time, on the judgment recovered against him by Relf and Chew, he could have availed himself of the conclusive presumption which that law raises, that the judgment had been paid. The presumption is no weaker when the suit is brought against the administrator of his estate 61 years after the date of the judgment. The case, therefore, as stated by the bill, is this: Appellant seeks to recover on a claim for money had and received, which had been reduced to judgment more than 60 years, and which the law conclusively presumed had been paid more than 40 years before her suit was brought.

We are of opinion, therefore, that the decree of the circuit court sustaining the demurrer to the bill was right, and it must be affirmed.