Eastham v. Sallis

• Decision Date: 15 January 1884
• Docket Number: Case No. 1677.
• Parties: D. EASTHAM, EX'R, v. SALLIS, ADM'R, AND RALSTON.
• Court: Texas Supreme Court

60 Tex. 576

D. EASTHAM, EX'R,

v.SALLIS, ADM'R, AND RALSTON.

Case No. 1677.

Supreme Court of Texas.

Jan. 15, 1884.

ERROR from Washington. Tried below before the Hon. I. B. McFarland.

The opinion states the case.

J. T. Swearengen, for plaintiff in error, cited: R. S., arts. 2025-2027; Toliver v. Hubbell, 6 Tex., 166;Moore v. Hillebrant, 14 Tex., 312;Neill v. Hodge, 5 Tex., 487;Baker v. Rust, 37 Tex., 242; Acts 11th Leg., p. 118; Wright v. Rhodes, 42 Tex., 523;Hargrove v. De Lisle, 32 Tex., 170;Firebaugh v. Ward, 51 Tex., 409; Rankin & Shatzell v. Scott, 12 Whart., 117.

Breedlove & Ewing, for defendant in error.

STAYTON, ASSOCIATE JUSTICE.

The statement of the nature and result of the suit, as made by counsel for plaintiff in error, is as follows: “P. Eastham obtained judgment, January 11, 1878, against D. E. Sallis in the district court of Washington county, and had the judgment recorded in Lampasas county, where the defendant D. E. Sallis owned one hundred and ninety-five and one-half acres of land.

D. E. Sallis executed a mortgage on the same land to J. R. Ralston May 23, 1878, to secure a note executed by him to Ralston, and which was recorded in Lampasas county.

The judgment in favor of Eastham was recorded March 19, 1878, and the mortgage to Ralston was recorded June 29, 1878, more than three months afterwards.

D. E. Sallis was insolvent and owned no other land besides the one hundred and ninety-five and one-half acres. In 1880 he died, and on the 2d of April, 1881, appellees Chappell and W. G. Sallis qualified as his administrators.

Eastham presented the administrators a certified copy of the judgment which had been recorded in Lampasas county for their acceptance. This was rejected. Thereupon plaintiff brought suit to have it established.

The plaintiff dismissed this suit and filed a motion to have the judgment corrected nunc pro tunc, which was sustained October 27, 1881.

The claim then comprising a certified copy of the original judgment, with its certificate of registration in Lampasas county, and the order of the district court awarding the same, was presented to the administrators and accepted by them as a just claim against the estate, within less than ninety days after the first presentation. It was then filed with the clerk of the county court, and was classed as a third class claim on the 21st of November, 1881, by the county judge, who indorsed his approval on both the copy of the original judgment recorded in Lampasas county, and on the certified copy of the order amending the same nunc pro tunc.

Ralston's note and mortgage was also presented, and classed as a claim of the third class. Each claimant filed an application for sale of this land in the county court in satisfaction of his lien, and each opposed the application of the other. The two applications and objections were heard together in the county court, which rendered judgment in favor of Ralston, ordering the land sold in satisfaction of his lien.

From this judgment Eastham appealed to the district court.

The district court rendered judgment September 7, 1883, giving Ralston priority of payment, but classing Eastham's claim as a claim of the third class, and entitled to the residue of the proceeds of the sale of the one hundred and ninety-five and one-half acres, after satisfaction of Ralston's claim.

B. Eastham died October 10th, leaving plaintiff in error executrix of his will, who brings the above judgment before this court for revision.”

It is claimed that the action of the probate court in classifying the Eastham judgment was conclusive, and that the court in this cause had no power to inquire as to the priority of the claims of the respective parties.

The classification of the respective claims could not have the effect of precluding the probate court from making an inquiry as to the right of the one creditor to have priority of payment over the other out of the proceeds of the sale of the property, even if they both had liens upon it.

If both parties held debts secured by mortgage or other lien, if properly probated, they would each be classed as claims of the third class; yet the one secured by the mortgage first executed or lien first acquired, there being no fact to postpone it, would be entitled to priority of payment out of the proceeds of the sale of the property; and the fact that they had been properly classified could not affect the power of the probate court to inquire as to which one was entitled to be first paid. R. S., 2037.

There is a seeming inconsistency in the ruling of the court below in holding that the claim of Eastham was secured by lien, and at the same time postponing it to the claim of Ralston; for if the claim of Eastham be secured by lien, it must be by reason of the record of the judgment made in Lampasas county prior to the time the mortgage to Ralston was executed, for it does not appear that the judgment in favor of Eastham as amended was ever recorded in Lampasas county.

This, however, cannot affect the merits of the controversy between the plaintiff in error and Ralston; the administrators of Sallis' estate have not assigned error, and it is, therefore, unnecessary to consider the effect of the classification of the claim on them. The judgment as originally rendered in favor of Eastham was presented, with its certificate of record and creditor's affidavit, to the administrators of Sallis' estate, and was by them rejected, and never after wards established by suit.

The judgment as amended was also presented, and it was allowed, approved and classified as a claim of the third class, and it seems that at the same time this was done, the county judge also approved and classed as a claim of the third class the judgment as originally rendered and as recorded in Lampasas county.

The judge who tried the cause found that the judgment as originally rendered, as well as the amended judgment, was presented to the administrators...