Sater v. Kocher

6 Ohio Cir. Dec. 276

• Court: Hamilton Circuit Court
• Decided: January 15, 1890
• Status: Published

Opinion

SWING, J.

This case came here on error to the court of common pleas.

The facts out of which the action arose, in brief, are these:

J. P. Cloud, by his will, directed his executor, William P. Converse, to convert into money as soon as practicable his real estate, and pay over the proceeds in equal sums to his two children, William and Ellen. And he authorized said executor to sell all his real estate, and execute deeds in fee simple to the purchasers for the same.

In accordance with these provisions of the will, said executor sold certain real estate to the defendant, Kocher, in payment receiving a certain amount in cash, and taking notes secured by mortgage for the balance; among which is the note sued on in this case for $1,500, and interest.

Afterwards certain proceedings were had in the probate court of Hamilton county. Cloud left a widow, and for this widow a guardian was appointed on account of insanity or imbecility, the guardian being one Simonson.

The probate court in these proceedings found that there were no children oi the said J. P. Cloud; -that there never had been any; and further found that the widow was entitled to the funds in the hands of the executor, Converse, given by said will to said children; and ordered said executor to pay said money over to said guardian. This was done, and among the funds turned over to said Simon-son was the $1,500 note sued upon. After the note became due, Kocher paid to said Simonson the amount of the same. The note was given to said Converse, executor, and wae payable t© his order, and was indorsed by Converse in this way: “Wo F. Converse, executor of J. P. Cloud.” Converse filed his settlement in said court, and paid over to said Simonson the balance found due in. his hands.

Afterwards, certain persons claiming to he the children of Said Cloud tamed] np, and claimed the legacy under the will of their father. The plaintiff in this •action was appointed administrator or the estate of said Cloud, has brought action to collect from defendant íhfc amoun* oí said note.

The plaintifl claims that all the acte of the probate court are void; that Converse had no right to turn said note over to said Simonson, guardian, and that said defendant, Kocher, was not authorized to pay said sote in the hands of said guardian.

In our view of the case, li is unnecessary for us to express any opinion as to the invalidity of the acts of the probate cofirt.

Converse, by the will, was authorized to sell the real estate in controversy; he was directed to convert into ready money Said real estate; he had a right to sell the real estafe as he did, for part cash and take purchase money notes for the balance, and the purchaser was not bound to look to the application of the proceeds. When he paid the cash and the purchase money notes according to their terms, he had performed his contract; and more than this he was not obliged to do, provided, of course, he acted in good faith and without fraud on his part.’ Converse indorsed and delivered this note to Simonson, and thereby authorized him to receive payment of the same. In the assignment and delivery of the note by Converse to Simonson, there is wanting, as far as if appears, any actual fraud or wrong on the part of either. Converse intended to deliver to Simonson a good title to the note — all the title he had in it. It may be that either or both Converse and Simonson were wrong — the one in turning over, and the other in receiving the note; and they or their bondsmen may be held to account to the person rightfully entitled to the same. But we are unable to see how Kocher can be held responsible for their error or wrong doing. Kocher agreed to pay the note to Converse or his order. He paid it in fact to the order of Converse to the one to whom Converse had directed him to pay. We see ho difference between this than if he had paid to Converse himself.

Milton Sater, for Plaintiff in Error. Harmon, Colston, Goldsmith & Hoadly, P. W. Francis, for Defendant' i\s Error.

The decision below was in accordance with these views, and the judgment will therefore be affirmed with costs.

(Affirmed by supreme court without report, Tuesday, June 5, 1894.)