Hall v. Mccormick

• Decision Date: 01 January 1851
• Citation: 7 Tex. 269
• Parties: HALL, ADM'R, AND OTHERS v. MCCORMICK AND ANOTHER, ADM'RS.
• Court: Texas Supreme Court

7 Tex. 269

HALL, ADM'R, AND OTHERS

v.MCCORMICK AND ANOTHER, ADM'RS.

Supreme Court of Texas.

1851.

The probate laws, from 1845 down to the present time, have been substantially uniform in the provision requiring, as an essential preliminary to the institution of a suit, that a claim for money should be presented to the administrator. By the act of 1846, the provision was not limited to claims for money, but embraced demands for personal property and for land.

Where judgment was recovered in 1841, upon which execution was issued, and returned, no property found, no further proceedings being had until 1848, when an action was brought in part to revive the judgment: Held, That the judgment had lost its lien; and the case of Bennett and Wife v. Gamble, (1 Tex. R., 124,) so far as it concerns the due diligence necessary in order to preserve the lien of a judgment and execution, cited and approved.

Where the lien of a judgment has been preserved, the death of the debtor will not disincumber his property of the lien; and as this could have been satisfied, under judicial process, without the necessity of a new suit, and as the assent of the administrator and the approval of the chief justice cannot impart to the judgment a higher sanction, there is no reason why the assent or approval should be sought by the creditor. But where the judgment has lost its lien, and cannot be revived or have operative force, except by an action or proceeding with that object in view, the claim is not distinguishable from the general mass of demands against the succession, and falls within the rule requiring presentation to the administrator before suit can be brought for its establishment. (Note 46.)

The terms of the statute, which requires claims to be presented to the administrator, &c., before suit, are comprehensive, embracing in their literal import all demands for money, and necessarily excluding exceptions where the statute has provided none, unless they be such as come within the purview and intention of the law, or be founded on extraneous considerations of equal or paramount sanction or force.

Where a claim against an estate has been allowed and approved, and the creditor brings suit against third persons, to set aside a conveyance made by the deceased in fraud of creditors, the administrator should be joined as a defendant in the suit. So, it seems, where the claim is rejected, the creditor may join all the parties as defendants in the same suit, praying for the establishment of the claim as against the administrator, and for the cancellation of the fraudulent, conveyance, &c., as against the others.

Where administration was obtained in December, 1845, being less than twelve months before the probate law of 1846, and a claim was not presented for allowance until after twelve months from the grant of administration, that claim was not barred, but only postponed.

The question, whether the statute of limitations runs in favor of a party who is in possession under a fraudulent conveyance to himself, discussed at length, and left open for further consideration. (Note 47.)

Where a decree was partly in favor of the plaintiff and partly in favor of the defendant, and the defendant only appealed, the court reversed the decree so far as it was against the defendant, and left it untouched so far as it was in his favor.

Appeal from Washington. Aldridge and Davis, in the year 1841, recovered judgment against John W. Hall, and having issued execution, it was returned, no property found. The said Hall, in the previous year, had, by deed duly filed for record, transferred the great mass of his property to his brother, W. D. C. Hall, sen'r, who, in 1841, conveyed the same to W. D. C. Hall, jr., for himself, and in trust for the other children of the said John W. Hall. This latter deed was not filed for record until 1844. There was but one execution issued on the judgment; nor was any further proceeding had in relation thereto until the commencement of this suit, the 18th of October, 1848. John W. Hall had previously departed this life; and, in 1845, letters of administration upon his estate had been granted to W. S. Hall, one of the appellants, but none of the property included in the conveyance was inventoried as belonging to the estate of the deceased or claimed by the administrator as such. The petition contained an allegation that the plaintiffs had caused the said judgment to be presented to the administrator for settlement and allowance, and that the said administrator, while not denying the justice of the claim, had refused and neglected to pay the same, alleging that the estate of the defendant was wholly insolvent, when, in truth, all of the property mentioned in the petition was liable for the payment of said judgment. The object of this suit was to revive the judgment, have the conveyance annulled as fraudulent, and subject the property to the payment of the debt.

There was a demurrer to the petition, which was overruled. The administrator, W. S. Hall, in an amended answer, averred that he took out letters of administration upon the estate of the deceased in December, 1845; that this fact was duly published, and creditors notified to present their claims, and that the claim now sued upon was not presented within one year after the grant of administration, &c. To this amended answer, there was a demurrer, on the ground that the claim being a judgment of record against the deceased in his lifetime, the plaintiffs were not bound to present the same, as in the said plea is supposed, &c. This demurrer was sustained.

The guardian ad litem of the other defendant pleaded the statute of limitation of two, three, five, and six years. To these pleas a demurrer was also sustained.

There was a decree, in accordance with the prayer of the petition, in relation to all the property specified in the conveyances, except as to one fourth of a league of land. The defendants appealed.

I. E. Shepard, for appellants. The demand here is a dormant judgment, by law presumed to be paid, and he has no right to go into a court of equity until that presumption was removed by scire facias or action of debt. But, if the petition is correct in this, still the demurrer should have been sustained, because the petition does not state that the claim was presented to the administrator, and rejected. The Probate act of February 5, 1840, was then in force. By the 16th, 17th, 18th, and 19th sections of that act, (Dig., arts. 1010, 1011, 1012, 1013,) all claims were barred unless presented in one year. No bearer of a claim for money against a succession could sue before presenting his claim. If the claim were presented and acknowledged, he could not sue. If the claim were presented and not acknowledged and approved, he might sue. The petition alleges that he caused his claim to be presented to the administrator, who, “while not denying the justice of the claim, has always neglected and refused to pay the same,” which alleges neither an acknowledgment nor rejection of the claim. (Graham v. Vining, 2 Tex. R., 433; 1 Tex. R., 639; Id., 669.) But this petition was filed 18th of October, 1848. The probate law of March 20, 1848, was then in force. The 47th section of this act (Dig., art. 1156) requires that every claim for money against the estate of a testator or intestate shall be presented in twelve months; and postponement of the payment is the penalty. The 49th section (Dig., art. 1158) requires that every such claim shall be accompanied by an affidavit that the claim is just, &c.; and the 50th section (Dig., art. 1159) prevents the holder of such claim from suing unless his claim, properly authenticated, has been presented, &c. It is not contended that either of those acts have been complied with, but, inasmuch as plaintiff's claim is a judgment, that it needed no presentation.

The plaintiff's demand is a “claim,” call it by what other name you may, for it takes a suit to establish it. “A claim is a challenge of the ownership of a thing which a man has not in possession, and is wrongfully withheld by another.” (Plowd., 359; 1 Dall. R., 444; 12 S. R., 179.)

The reasons for presenting a claim of this character are the same as a note, account, mortgage, &c.--nay, stronger; for the presumption of law is that it has been paid. And the same also for requiring it to be verified by affidavit. It might have been paid. The administrator might have acknowledged the claim and saved costs. (McDougald v. Smith's Executors, 1 Tex. R., 490.)

II. The court erred in sustaining the demurrer to the 3d, 4th, 5th, and 6th pleas of the guardian ad litem for A. J. Hall, and the amended answer of W. S. Hall, the administrator. The defendants could demur, because there was no allegation of presentation, &c., in the petition, or might plead the same facts in bar. (See authorities before cited.)

III. The court erred in sustaining the demurrer to the 1st, 2d, 9th, 10th, and 12th pleas of the guardian ad litem of A. J. Hall. The above pleas set up the statute of limitations in every form thought to be applicable to the case. Statutes of limitations “are justly held as statutes of repose,” “and should be regarded with favor by courts of justice.” (Gautier v. Franklin, 1 Tex. R., 732.) It is not contended that, if this action be considered as merely a scire facias, or as debt to revive the old judgment, that these pleas would be good; but, considering this action as a proceeding to set aside deeds, to take from the defendants property, personal and real, that had been in their possession for years, under and by virtue of deeds duly recorded, it is insisted that there is nothing in the circumstances of the case nor in the law itself that prevents the operation of the statute. And, especially, it is insisted that the plea of limitation of five years is a good bar to this action. The 16th section of the act of 1841 (Dig., art. 2392) enacts, “that he, she, or they, who shall have had...