Cobb v. Norwood

• Decision Date: 01 January 1854
• Citation: 11 Tex. 556
• Parties: COBB, ADM'R, v. NORWOOD, ADM'X, AND OTHERS.
• Court: Texas Supreme Court

11 Tex. 556

COBB, ADM'R,

v.NORWOOD, ADM'X, AND OTHERS.

Supreme Court of Texas.

1854.

Suit must be brought on a claim against an estate, within three months after its rejection by the administrator, where such rejection is by operation of law; that is, where the administrator refuses to indorse or annex his allowance or rejection in writing. (Note 78.)

Where suit was instituted in Mississippi, and pending the same, the defendant removed to Texas, and after judgment both parties died, and administration was granted in Mississippi on the estate of the creditor, and in Texas, on the estate of the debtor; and the agent of the administrator of the creditor, so appointed, made an affidavit to the justness, etc., of the claim, and presented it to the administrator of the debtor, and the latter rejected it, and suit was not brought within three months; and the person who had acted as agent of the foreign administrator obtained letters of administration here on the estate of the creditor, and presented the claims again (same affidavit), and it was again rejected, whereupon he brought suit; Held, That as the foreign administrator had no authority to collect the debt from the administrator here, the presentation by his agent was a nullity, and that the claim was therefore not barred by failure to sue within three months from that time; and Held, further, That the second presentation was sufficient, the rejection being general. But see what was said about the objections not being specific. (Note 79.)

See this case for what is said about objections to evidence appearing in the bill of exceptions, where the evidence is ruled out.

The creditors and subsequent purchasers without notice, and not the administrator, of a fraudulent vendor, are the proper parties to attack the fraudulent conveyance; and it seems that where the administrator of the fraudulent vendor and the fraudulent vendees are joined as defendants by a creditor, the latter could prevail against the vendees, although he should fail as against the administrator, by reason of a defect in the presentation of the claim for allowance. (Note 80.)

Appeal from Gonzales. The transcript of the judgment or decree sued on in this case, and filed, as an exhibit, with the petition, purported to contain the proceedings before the Hon. Henry Dickenson, Vice Chancellor for the Northern District of the State of Mississippi, sitting at Carrollton. The Vice Chancellor's certificate of authentication, attached to this transcript, was as follows:

“THE STATE OF MISSISSIPPI. I, Henry Dickenson, Vice Chancellor of the State of Mississippi, do hereby certify that Dan. R. Russell, whose name is signed to the above certificate, was, at the date thereof Clerk of the District Court for the Northern District of Mississippi at Carrollton; that his attestation is in due form; and that full faith and credit are due to his acts. Given,” etc.

Attached to said transcript was an affidavit, as follows:

+------------------------+
                ¦“THE STATE OF TEXAS,  ¦)¦
                +----------------------+-¦
                ¦County of Gonzales.   ¦)¦
                +------------------------+
                

Before me, the undersigned authority, this day personally appeared Samuel S. Cobb, who being duly sworn, upon oath says, that the within claim against the estate of George Norwood, dec'd, is just, and that all legal offsets, payments, and credits, known to the affiant, have been allowed.

+-----------------------------------------------------+
                ¦Subscribed and sworn to before¦)¦SAM'L S. COBB,      ¦
                +------------------------------+-+--------------------¦
                ¦me, August the 27th, 1850,    ¦)¦Agent of William and¦
                +------------------------------+-+--------------------¦
                ¦F. CHENAULT, CL'K, C. C. G. C.¦)¦Indiana Green.”     ¦
                +-----------------------------------------------------+
                

This was the only affidavit of authentication that was made. On same transcript was the following indorsement:

“The within claim was presented to me on the 28th day of January, A. D. 1851, and I reject the same.

SARAH A. L. NORWOOD,

Adm'rix of estate of George Norwood, dec'd.”

The above was the first transcript offered in evidence by the plaintiff, and rejected by the Court. It was filed with the petition, March 6th, 1851.

A certificate of the Vice-Chancellor was filed October 15th, 1851, as follows:

“THE STATE OF MISSISSIPPI. I, Henry Dickenson, Vice-Chancellor of the State of Mississippi, in and for the Northern District thereof, in which is embraced the District Chancery Court, for said Northern District, holden at Carrollton, do hereby certify that Daniel R. Russell, whose name appears to the transcript of the record in the case of William Green and wife, administrator and administratrix, against George Norwood (in which cause a final decree was made at the April Term, 1850, of said Court), is and was Clerk of said Court at the date of said decree, has all the time since been Clerk thereof, and still is Clerk of said Court; that his said attestation is in due form of law, and entitled as such to full faith and credit. In witness whereof,” etc.

April 12th, 1852, there was filed another transcript of the proceedings in Mississippi, with the certificate of the Clerk, and without any certificate of the Vice-Chancellor. April 13th, 1852, the plaintiff amended, making the last two documents named, exhibits. These were the two documents mentioned in the plaintiff's second bill of exceptions.

The other facts will be found in the opinion of the Court.

A. S. Cunningham, for appellee. The reason given by the District Judge for ruling out the papers, was this: The affidavit attached to the judgment was made by Samuel Cobb, agent, and not by the creditors. It was contended by the defendant's counsel, that an agent could not be aware of the payments, credits, etc.; and this was the reason given, and the only reason given for rejecting it as evidence, in the Court below. The case of Hansell v. Gregg, reported in 7 Tex. R., 223, had not then been seen by the Court, nor was it referred to by either counsel, if known to them.

Phillips & Phillips, for appellee. The claim was presented for acceptance August 27th, 1850, and on that day was rejected. Suit was brought March 6th, 1851. The time that elapsed between its rejection and the commencement of this suit, was six months and nine days. Hence the action was barred. (Hart. Dig., Art. 1160; 5 Tex. R., 391.)

LIPSCOMB, J.

It appears from the record, that Green and wife, administrators of William J. Norwood, by the decision and determination of a suit in the Court of Chancery of Mississippi, in certain...