Hansell v. Gregg

• Decision Date: 01 January 1851
• Citation: 7 Tex. 223
• Parties: HANSELL v. GREGG, ADM'X, AND OTHERS.
• Court: Texas Supreme Court

7 Tex. 223

HANSELL

v.GREGG, ADM'X, AND OTHERS.

Supreme Court of Texas.

1851.

Where an action was brought by one of two joint obligees on a note secured by mortgage, and the defendant excepted to the petition on account of the non-joinder of the representatives of the other obligee, whom the plaintiff had alleged to be deceased: Held, That the exception was sufficiently answered by another averment of the petition, that the survivor was the sole owner of the cause of action.

The statute does not require the affidavit which accompanies a claim on presentation to an administrator for allowance to be made by the owner; it may be made by an agent or attorney who is conversant with the facts, Quere if a claim were rejected expressly on the ground that the affidavit was made by an agent, and did not disclose his means of information. (Note 32.)

Where a claim consisting of a note and mortgage, apparently barred by the statute of limitations, but accompanied by written acknowledgments of the justice of the claim, was presented to an administratrix, and the affidavit stated that the above claim (referring to the note and mortgage) was just, &c.; the administratrix rejected the claim, on the ground that it had been “paid and discharged:” Held, That the description of the claim contained in the affidavit was sufficient.

If an administrator indorse on a claim his reason for rejecting it, he will not be permitted to plead or urge, in abatement of the suit, any other reason which goes merely to the sufficiency of the presentation for allowance.

If the objections to the manner in which the claim was presented were, in our opinion, well taken, it may well be doubted whether they should have any other effect than to impose costs on the plaintiff. (Note 33.)

Appeal from Burleson. The appellant brought suit against the appellees, the administrator and heirs of John Gregg, deceased, to foreclose a mortgage given to secure the payment of a promissory note bearing date on the 28th day of November, 1842, and due on the 1st of March, 1844. The suit was commenced on the 6th day of June, 1850, and, to take the case out of the operation of the statute of limitations, the plaintiff alleged in his petition, and made a part thereof, certain written acknowledgments of the defendant and promises of payment of the debt, made within less than four years next before the commencement of the suit. The petition further alleged the death of Gregg; the appointment of his administratrix; and the due presentation to her of the claim, including both the original note and mortgage and the several subsequent promises of payment, for her allowance, accompanied with an affidavit by the attorney of the plaintiff attached to the note, stating “that the above note, dated on the 28th day of November, 1842, for the sum of three thousand dollars, due on the 1st day of March, 1844, and payable to Wm. B. Hansell and John Hansell, and signed by John Gregg, together with the mortgage executed on the same day by the said Gregg, to secure the payment of said note, are the property of John H. Hansell, and that the claim is just; and that after allowing all legal offsets, payments, and credits known to affiant, there is a balance of two thousand one hundred and twenty dollars and ninety-six cents due and payable to said John H. Hansell, on this day, from the estate of the said John Gregg, deceased.” The administratrix refused to allow the claim, and stated her reason, in writing, on the back of the note, as follows: “This note has been fully paid and discharged; therefore it is rejected.” The note and mortgage were given in favor of the plaintiff John H., and William B. Hansell, jointly, and the petition alleged that the said William B. is deceased, and that he, the plaintiff, was the sole owner of said claim.

The defendants excepted to the legal sufficiency of the petition. The court gave judgment for the defendants on the exceptions to the petition, and the plaintiff appealed.

Giddings, for appellant.

I. The court erred in ruling that the affidavit must in all cases be made by the owner of the claim, and that it could not be made by the agent of the plaintiff.

The statute requires an affidavit to be made, but does not say it shall be made by the plaintiff in person, nor does it provide by whom it shall be made. Any one who knows the facts may make the affidavit in such cases. (Phill. Dig., Ala. R., AFFIDAVITS.)

As the attorney has sworn to all the facts required by the statute, the court will not, in the absence of proof, presume that he has sworn to facts which he did not know; and in this case the affidavit proves nothing, where the party is put to his suit, for the claim must be established by other means.

An agent or attorney may make the affidavit in various cases. (Impey's Prac., 67; Comyn Dig., 332; 2 Smith, 61.) If made by an agent or attorney in fact, affidavit need not show an excuse for not being made by the party himself. (Murray v. Kirkpatrick, 1 Cow. R., 209; Jackson v. Watts, 1 McCord. R., 288; 1 Whart. R. 320.)

II. The court erred in ruling the affidavit to be insufficient, inasmuch as the same was not attached to each and all of the various subsequent promises. The affidavit contains every requirement of the statute. The affidavit need not be attached even, nor describe the cause of action or various papers which are presented as evidences of the claim. The claim is only required to be presented, accompanied by an affidavit. The administrator is advised of the nature of the claim by the presentation to him; he can examine for himself when presented. In this instance the various papers, the note, mortgage, agreement, and subsequent promises were all presented to the administratrix, accompanied by an affidavit in the language of the statute itself.

The main ground of objection to the affidavit made below was, that it should have named the subsequent promises, the letter, &c., when the affidavit only names the note and mortgage. There is no doubt but that a subsequent promise, when relied upon to take a case out of the statute, must be averred in the petition; this doctrine is settled in the case of Coles v. Kelsey, (2 Tex. R.) But that decision does not prescribe the mode of presentation of claims, nor can it be cited as authority for the construction of the above act. It seems to me that it is wholly immaterial, so far as the affidavit and presentation of the claim are concerned, whether the old or new promise be considered as the cause of action, or whether both together compose the cause of action. In this case the original note was never barred, the...