Cannon v. Jackson

• Decision Date: 01 January 1876
• Citation: 46 Tex. 303
• Court: Texas Supreme Court
• Parties: JAMES H. CANNON, ADM'R, v. MCDANIEL & JACKSON.

46 Tex. 303

JAMES H. CANNON, ADM'R,

v.MCDANIEL & JACKSON.

Supreme Court of Texas.

1876.

APPEAL from Anderson. Tried below before the Hon. John H. Reagan, special judge.

The facts necessary to a proper understanding of the opinion will be found contained in it.

T. T. Gammage, for appellants, contended--

1st. That if the lien existed at all, it could only be enforced in the County Court; and relied on Robertson v. Paul, 16 Tex., 472;Wheeler v. Love, 21 Tex., 584;20 Tex., 129;Graham v. Vining, 1 Tex., 639;Martin v. Harrison, 2 Tex., 456;Conkrite v. Hart, 10 Tex., 141;Boggess v. Lilly, 18 Tex., 205;Chandler v. Burdett, 20 Tex., 44;Cunningham v. Taylor, 20 Tex., 129.

2. That this case having been once before this court, and the pleas of the jurisdiction of the District Court having been by it, on that occasion, adjudged good, (38 Tex. 491,) the question of jurisdiction is stare decisis, citing Chambers v. Hodges, 3 Tex., 517;Wood v. Wheeler, 9 Tex., 128; Cooley's Const. Lim., 47-55; 1 Kent, 475.

3. That the allowance and approval of the notes were nullities; citing Walters v. Prestidge, 30 Tex., 73, 74.

4. That Mrs. Deckerd stood in the relation of an innocent purchaser without notice; citing Baxter v. Dear, 24 Tex., 17;Stone v. Darnell, 20 Tex., 11. He also cited, on other propositions to which the opinion refers, Giddings v. Crosby, 24 Tex., 299;Conkrite v. Hart, 10 Tex., 142;De Cordova v. Smith, 9 Tex., 129;Luter v. Rose, 20 Tex., 648;Rogers v. Green, 35 Tex., 730.T. J. Word, for appellees.--That the parties had a right to be subrogated, I refer to 1 Story's Eq. Juris., secs. 567, 635, 638; 2 Story's Eq., sec. 1226.

It is not pretended the land has ever been paid for. Mrs. Deckard has abandoned it; lives in Cherokee county. Two orders of the Probate Court, one 1866, and one 1869, have been made--the first allowing her $600 in lieu of these 205 acres of land, and directing other lands in Trinity and Cherokee to be sold, to raise the $600; the other, during the pendency of this suit, setting apart these 200 acres of land for a homestead.

The authorities relied on are Crosby v. McWillie, 11 Tex., 94-96, AUTHENTICATION; Harrison v. Oberthier, 40 Tex., 387, HOMESTEAD; 38 Tex., 487, 490, 491.

ROBERTS, CHIEF JUSTICE.

This is a second suit upon the notes, and a second judgment in the last suit-- the first judgment having been reversed and remanded by the Supreme Court.

The first suit was brought in October, 1866, by R. M. Bonner, for the use of McDaniel and Jackson, against W. Y. Lacy and John G. Stuart, as sureties on the notes of John T. Deckard, then deceased, and against I. S. Taylor and wife, assignors and guarantors of said notes, in which a judgment was recovered against them, on the 5th of November, 1866, for $2,497.40, being the principal and interest then due upon said two notes. In this judgment, it was recited that “R. M. Bonner, for the use,” &c., recovered the judgment, without mentioning the names of the usees, McDaniel and Jackson, in the judgment.

This suit was brought by the usees, McDaniel and Jackson, to correct the previous judgment, so as to have them to appear to be the beneficiaries in the recovery against the same parties, defendants, and also against James H. Cannon, as administrator of John T. Deckard, setting up a mortgage upon a tract of land, made by Deckard at the time of the execution of the notes to I. S. Taylor, to secure the payment of the notes, being the land for which the notes were given, then sold by Taylor to Deckard. Pending this suit, Harriet M. Deckard intervened, on behalf of herself, as widow, and of her two children, as heirs of John T. Deckard, claiming the land as a homestead, set apart to them as such by order of the County Court of Anderson county, in October, 1869, after the institution of this suit, and previous to her intervention. The plaintiffs recovered a judgment, in the name of Bonner, for their use, December 5, 1871, against I. S. Taylor, “ pro forma,” and against his wife, subrogating them to all the rights of said Taylor and wife in the said mortgage and in the said land, and that the same be sold in satisfaction of the said judgment. In said judgment it appeared that the suit was dismissed, as to Lacy, on account of his plea of bankruptcy; as to Stewart, not served with process; and as to I. S. Taylor, with respect to a judgment for money, on account of his bankruptcy, the judgment for the amount of money due was rendered against the wife of Taylor. From this judgment no appeal was taken by Taylor or his wife; but Cannon, administrator, and Mrs. Harriet M. Deckard appealed, and obtained a reversal of the judgment, on the 8th of September, 1873, by the Supreme Court.

After the return of the case to the District Court, the plaintiffs amended their pleadings, setting up their rights of subrogation under the judgment against Taylor and wife, which they had not appealed from, and represented the order of the court, setting apart the land as a homestead to Harriet M. Deckard and her children, to be a nullity, it being made after this suit was commenced, and a substituted allowance for a homestead, having been previously made, which had not been set aside.

The plaintiffs again, on the 28th of November, 1874, recovered a judgment, “that Harriet M. Deckard take nothing by her plea of intervention;” and against Cannon, adm'r, for $2,497.40, the amount of the first judgment against Lacy and others, and ten per cent. interest thereon from its date, 5th of November, 1866; that the mortgage be foreclosed, and that execution issue to sell the land. From this judgment Cannon, the administrator, alone has appealed to this court.

All of the other parties, as sureties, assignors, and guarantors, and intervenor, represented separate and distinct interests in reference to the suit of plaintiffs, and their failure to appeal from the judgments, as to them, leaves them out of the case in its present consideration by this court. (Cheatham v. Riddle, 8 Tex., 162.)

Exceptions were taken to this suit by the administrator Cannon, because, although the notes had been allowed by the administrator and approved by the court, the mortgage was never presented to the administrator for allowance or rejection, nor was it alleged to have been, so as to authorize a suit upon it against the administrator in any court. In answer to that, it is contended that the mortgage is but an incident to the notes which it is given to secure, and that a presentation of it for allowance is unnecessary, if the notes are allowed and approved. It would certainly be the better practice to present the mortgage, or a copy of it, with the notes for allowance, so as to apprise the administrator and the court of its existence, especially where there was any considerable delay in proceedings to assert the lien consequent upon it. Chief Justice Hemphill advanced the opinion, though not as a conclusively authoritative decision, that it was sufficient to procure the allowance and approval of the notes secured by the mortgage, without the mortgage itself. He arrived at that conclusion by a construction of the words of the statute: “Any creditor of the estate of a deceased person, holding a claim secured by a mortgage or other lien, which claim has been allowed and approved, or established by suit,” may obtain an order of sale, &c. (Paschal's Dig., art. 1319.)

Danzey v. Swinney, 7 Tex., 627. This was followed in the decision of a case subsequently. (Simpson v. Reily, 31 Tex., 301.)

This is certainly the literal interpretation of the statute, and without some more cogent reason than any that now presents itself, it would hardly be proper to depart from it.

An objection was made to the affidavit proving up the notes for allowance and approval, by a person not a party to them, nor representing himself in the affidavit to be an agent of the party. The allowance and approval being in the nature of a judgment, establishing the notes as a valid claim against the estate, precludes the consideration of that question now, otherwise than by a direct proceeding to set aside the approval.

For some reason, the objection is not available to the defect in the certificate of authentication in leaving out the word “payments.” In a case where the word “credits” was left out, it was held that the authentication was sufficient; and the claim being rejected, suit should have been brought on it in three months, as required by the statute, (Crosby v. McWillie, 11 Tex., 94.)

But in a suit upon an account, authenticated by an affidavit, which omitted the words “payments and offsets,” it was held that a suit could not be maintained on the account so proved up. This was in a direct proceeding, wherein the sufficiency of the affidavit was a material fact in support of the suit upon the account. (Walters v. Prestidge, 30 Tex., 65.)

Both of these questions are settled in this case, by the allowance and approval of the claim. (Moore v. Hillebrant, 14 Tex., 312, and references therein.)

The assignee of a note secured by a lien, may enforce the lien, as well as the payee; because the lien is an incident that follows the note. (Moore v. Raymond, 15 Tex., 554;Murray v. Able, 19 Tex., 213;Id., 500; Pinchain v. Collard, 13 Tex., 335, 336;Duty v. Graham, 12 Tex., 427;Perkins v. Sterne, 23 Tex., 561.)

The administrator, Cannon, by exceptions and by a plea, objected to the jurisdiction of the District Court, as not competent to render a judgment and foreclose the mortgage lien in this case. The District Court overruled the exception, and held the plea to the jurisdiction insufficient to defeat the plaintiff's action against him, which is assigned as error by appellant. That plaintiff, being the assignee of two notes secured by a mortgage, can proceed to enforce his lien in the County Court, is well established by numerous decisions of this court; and that he must do so, unless there is some good ground for bringing the suit in the District...