Claiborne v. Yoeman

• Decision Date: 01 January 1855
• Parties: PHIL. CLAIBORNE AND ANOTHER v. JAMES YOEMAN, ADM'R.
• Court: Texas Supreme Court

15 Tex. 44

PHIL. CLAIBORNE AND ANOTHER

v.JAMES YOEMAN, ADM'R.

Supreme Court of Texas.

1855.

It may be true that administration upon the estate of the plaintiff's intestate was granted in 1838, and that it was determined by operation of law in 1839; and yet the estate may not have been administered, and, for aught that appears, the administration may have been rightfully renewed (in 1853) and continued. But whether, etc.

Where a note describes the payee as administrator of an estate, he may maintain a suit thereon in his own name; and if he sues as administrator, a denial that he is administrator, although it be in proper form, presents an immaterial issue, and is therefore bad. [1 Tex. 184;2 Tex. 277, 412;11 Tex. 142;28 Tex. 622.]

Where the defendant was sued by an administrator, on a note given for the purchase money of a land certificate, sold at a probate sale, and the defendant pleaded failure of consideration, on the ground that the administration was void, being granted a great number of years after the death of the intestate, and on the ground that the petition for order of sale was not in conformity to law, it was held that the plea was rightly overruled, on the ground that the heirs should have been made parties, and that the defendant should have offered to restore the certificate. (There were no exceptions to the answer, but the case was submitted to the court without a jury.) [7 Tex. 497;10 Tex. 65;17 Tex. 627;19 Tex. 260;28 Tex. 219.]

A continuance will not be granted to obtain evidence to support an answer which, if proved to be true, is no defense to the action.

Error from Bastrop. Suit by James Yoeman, administrator de bonis non of James McLaughlin, deceased, against the plaintiffs in error, on their promissory note for $852.50, dated February 18, 1854, payable to “James Yoeman, administrator de bonis non of the estate of James McLaughlin.”

Defendant Claiborne answered, that James McLaughlin died in 1837; that at the February term, 1838, of the county court of Bastrop county, William McLaughlin administered upon his estate, and continued to administer the same until February term, in 1839, when said administration ceased by operation of law; that on the 28th day of March, 1853, the letters of administration de bonis non, upon the estate of said James McLaughlin, deceased, issued from the county court of Bastrop county to James Yoeman, the plaintiff.

This defendant, for further plea and answer, says that the note set forth in plaintiff's petition was given in consideration of a land certificate for a league and labor of land, the headright of said James McLaughlin, sold by said administrator at a public sale, made in conformity with an order of the county court of Bastrop county, which said sale defendant alleges to be void, for that the petition upon which said sale was ordered was not in conformity with law.

This defendant further answers that the title to said land certificate made and executed by said administrator is void and of no effect, and therefore that the consideration of said note, in plaintiff's petition, wholly and entirely failed. (Sworn to.)

The other defendant answered that he was merely a surety for Claiborne.

A jury being waived, the court adjudged the answer of Claiborne insufficient, and rendered judgment for the plaintiff.

P. Claiborne, for plaintiffs in error.

WHEELER, J.

The answer of the defendant sets up two distinct grounds of defense, which are relied on in argument by the appellant. 1st. That the plaintiff was not entitled...