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,
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
"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year 1811, which had been revoked by his will of 1813."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.
The prayer of the bill was that the court would decree that the
estate of Hammond was indebted to appellant in the sum
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.
MR. JUSTICE WOODS delivered the opinion of the Court. He stated
the facts in the foregoing language and continued:
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.
13 East 20; Spratt v. Hobhouse,
Page 111 U. S. 398
4 Bing. 173; Israel v. Douglas,
1 Hen.B1. 239;
Beardsley v. Root,
11 Johns. 464; Hall v.
17 Mass. 575; Claflin v. Godfrey,
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, Revised Statutes, sec. 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.
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. 513, 554;
Odiorne v. Maxcy,
13 Mass. 178, 182; Menkens v.
27 Mo. 163; Attwood v. Small,
6 Clark &
Finn. 232. By ratifying the sale, the appellant places herself in
the position of Relf and Chew, and
Page 111 U. S. 399
Hammond has the same rights against her as he had against
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. 506; Wayman v.
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 T.R. 270; Lesley v. Nones,
& R. 410; Jackson v. Wood,
12 Johns. 242; Best on
Presumptions § 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.Statutes of Missouri, sec. 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 twenty years raised by the
common law continues unaffected by that act,
Page 111 U. S. 400
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 County v. Harbison,
58 Mo. 90; Smith's
Ex'r v. Benton,
15 Mo. 371. If, therefore, twenty years after
its date, suit had been brought against Hammond in his lifetime 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 sixty-one 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 sixty years, and which the law
conclusively presumed had been paid more than forty 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