Hume v. Perry

• Decision Date: 30 March 1911
• Citation: 136 S.W. 594
• Parties: HUME v. PERRY et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

136 S.W. 594

HUME v. PERRY et al.^†

Court of Civil Appeals of Texas.

March 30, 1911.

Rehearing Denied April 20, 1911.

Appeal from District Court, Fannin County; Ben H. Denton, Judge.

Action by Lucy Perry against Winfred L. Hume, executrix, and others. From a judgment overruling a demurrer to the petition, defendant named appeals. Affirmed.

Mark McMahon and J. G. McGrady, for appellant. Read & Lowrance, for appellee.

HODGES, J.

The appellee, Mrs. Lucy Perry, a feme sole, instituted this suit in the district court of Fannin county against Henry G. Evans, J. L. Hume, and Mrs. Winfred Hume, the latter as the executrix of the estate of Geo. L. Hume, deceased. The petition alleges, in substance, the execution and delivery of seven promissory notes by Henry G. Evans to Geo. L. Hume in 1904, aggregating $5,200, due in seven annual installments thereafter; that the notes were given in part payment for land described in the petition; that they were afterwards transferred by indorsement by Geo. L. Hume to the appellee, Mrs. Lucy Perry; that upon the failure of Evans to pay the first of the notes to mature, an agreement was entered into, on April 1, 1908, by which the time of the payment of the past-due notes was extended to the 1st day of the following December; that upon the same date a written contract was made, by which Geo. L. Hume and J. L. Hume bound themselves to guarantee the payment of the past-due notes on the date to which they had been extended, and of the remaining notes as they matured. The agreement further provided that the parties thereto waived notice and protest of every nature and description, except notice of default, to be given 90 days in advance of bringing any suit on the notes. This agreement was signed by Evans also. It is further alleged that on the same date, and as additional security for the payment of all the notes, Evans executed a deed of trust on certain lands situated in Collin county. It is also alleged that after the execution of the above-mentioned instruments, and before the maturity of the notes according to their terms, Geo. L. Hume died, and Mrs. Winfred Hume was appointed executrix of his estate. The specific allegations relative to those facts are as follows: "And whereas the said Geo. L. Hume has died, and the said Winfred Hume has been appointed executrix of his estate and is acting as such executrix under the orders of the probate court of Travis county, Texas; and whereas more than 90 days' notice in advance of bringing this suit has been given to said Mrs. Winfred Hume and J. L. Hume; and whereas this claim against the estate of said Geo. L. Hume has been presented to Mrs. Winfred Hume, executrix of said estate, and the said Mrs. Winfred Hume did, on, to wit, the 13th of October, 1909, refuse to approve said claim," etc. The petition then closes with a prayer for judgment against all of the defendants for the amount of the principal and interest due on the notes, together with 10 per cent. attorney's fees, according to their tenor and effect, and for the foreclosure of the vendor's lien and the lien created by the deed of trust executed by Evans.

Evans answered, admitting the execution of the notes, and that they were unpaid, except as to a portion of the interest claimed. He also admitted the execution of the deed of trust, and asked that the judgment be so framed as to require the property covered by it to be first sold and the proceeds applied to the payment of the amount found to be due. J. L. Hume and Mrs. Winfred Hume, the latter as executrix of the estate of Geo. L. Hume, filed a joint answer, in which each separately demurred generally to the petition. They also denied generally the facts alleged. They further answered specially as follows: "These defendants deny all the allegations of plaintiff's petition. These defendants further answering say that plaintiff should not recover against them in the form of suit as now presented, for the reason that she is not exhausting all of her primary security for the payment of the debt sued on in this: That defendant Evans, prior to the institution of this suit, sold in various tracts the entire lands situated in Fannin county mentioned in the petition, upon which plaintiff has a vendor's lien, to various persons whose deeds have been placed of record in the county clerk's office in Fannin county, prior to the filing of this suit, and of which the plaintiff had notice, and none of the said purchasers, all of whom reside in Fannin county, have been made parties defendant to this suit, and therefore this court cannot foreclose the vendor's lien upon such lands in such form as would exhaust the same and place it beyond the right of such purchasers owning or in possession thereof to redeem the same, and therefore it is inequitable to compel these defendants to pay any sum to the plaintiff as indorsers or guarantors, until the plaintiff has exhausted the aforesaid securities; such sales having been made on the dates and in the amounts as follows." Then follow in detail the names of the parties which they claim should have been joined in this suit, together with the number of acres of the land described in the plaintiff's petition which each claims to own. The answer closes by asking to be discharged with their costs.

By a supplemental petition the plaintiff demurred generally to the portion of the answer copied above. This demurrer was sustained, and the appellant's general demurrer to the plaintiff's petition was overruled. These rulings are the errors assigned. Mrs. Winfred Hume, the executrix, alone has appealed.

The ground upon which it is contended that a general demurrer should have been sustained to the petition is that it shows upon its face that more than 90 days have elapsed between the rejection of the claim evidenced by the notes and contract of guaranty and the institution of this suit. The petition alleges that the approval of the claim was refused on the 13th day of October, 1909, and the indorsement on the petition shows that this suit was filed January 15, 1910, thus disclosing an interval of more than 90 days. The argument in support of the demurrer assumes that the petition shows upon its face that Mrs. Hume is not an independent executrix, and that the claim sued on is one which, under the provisions of chapter 19 of title 39 of the Statutes (Rev. St. 1895), should have been presented to her for allowance as a condition precedent to the institution of any suit thereon. If these assumptions are correct, there would be much force in the contention here made that the general demurrer to the appellees' petition should have been sustained.

However, it may be conceded that the executrix was not authorized to administer the estate independently of the probate court, and that it affirmatively appears from the petition that more than 90 days have elapsed between the presentation and rejection of the claim and the institution of this suit; still the court correctly overruled the demurrer, if the claim is of that character which the law does not require to be verified and presented for allowance in the manner pointed out in the chapter above referred to. While the language of the statute is general, and is sufficiently comprehensive in terms to include all claims for money against the estate of a deceased person, the courts have limited its application to those where the amount claimed is fixed and definite, not contingent or indeterminate, and which are susceptible of verification by affidavit. National Guaranty Loan & Trust Co. v. Fly, 29 Tex. Civ. App. 533, 69 S. W. 231, and cases cited.

The solution of the question here presented may be materially aided by analyzing the conditions with which the appellee as a creditor was confronted at the time this debt matured, or when this suit was filed. She then held an indebtedness for which three different parties were liable, and against whom she had the right to proceed to enforce payment. One of the parties, Evans, was liable primarily; the others, the Humes, being guarantors, or sureties, were only conditionally so. In order to avail herself of the right to subject the property belonging to the estate of Geo. L. Hume to the payment of her claim, she was required to adopt one of the three following methods of procedure: (1) Present her claim to his executrix and prosecute it to judgment through the probate court, without reference to any previous or contemporaneous proceedings against Evans, the principal obligor; or (2) proceed against Evans in the district court, and, after having there obtained a personal judgment against him, then present and prosecute her claim in the probate court against the estate of Geo. L. Hume; or (3) adopt the course she did—join all of them in one action in the district court. Unless the claim is one which should be prosecuted to judgment in either the first or the second method above indicated, it would seem that rejection by the executrix was not made by the statute a condition upon...