Page v. Findley
| Decision Date | 31 December 1849 |
| Citation | 5 Tex. 391 |
| Parties | PAGE v. FINDLEY, ADM'R. |
| Court | Texas Supreme Court |
Where the petition alleged an indebtedness for money paid to the use of the defendant at her instance and request, in discharge of a note executed by her and her husband, and it did not appear whether the husband was dead or not at the time of the request: Held, On general demurrer, that there was no presumption that the husband was living at the time of the promise.
Where it appears from the petition that a claim against an estate has not been sued within three months from the time of its rejection or disapproval, a general demurrer lies. (Note 69.)
Quere whether the claim of a creditor who has failed to sue within the time required after its rejection or disapproval is prescribed or merely postponed.
Appeal from Montgomery. The appellant, who was plaintiff in the court below, alleged that the deceased intestate, being indebted to one James Elkins in the sum of three hundred and fifteen dollars, requested plaintiff to pay the same to said Elkins and she would refund the same to plaintiff on request; that about the 1st day of December, 1847, he paid the said Elkins the said sum of money; that in January, 1848, the said Ann McIver died intestate and the defendant was appointed her administrator, and that on the 7th day of October, 1848, the plaintiff presented the account duly proved to the administrator, who rejected the same, and the plaintiff filed an account, marked A, as a part of his petition, and also the claim marked B, which the said deceased owed to the said Elkins, and which was prayed to be made a part of the petition. The account was a charge against Mrs. Ann McIver for payment made to James Elkins, at her instance and request, on a note executed by herself and T. T. McIver, her husband, payable twelve months after date. The note was executed 16th January, 1847, and the payment was made on the 1st December, 1847. The exhibit B was a copy of a note payable to James Elkins and signed by T. T. McIver and Ann McIver. The petition was filed on the 8th of January, 1849.
Among other pleas, the defendant filed a general demurrer, which was sustained and the petition dismissed.
Yoakum and H. N. Potter, for appellant.
In the argument of the appellant it is stated that the demurrer was sustained below on the ground that the petition contained no averment of the death of the husband of the deceased intestate. This we do not conceive to have been necessary. The charge is made against Mrs. Ann McIver for the payment of money at her instance and request. Nothing is said of her husband. She is not averred to be a married woman. The demurrer admits that the money was paid by the petitioner at her instance and request, and the presumption is that when she contracted the debt she intended to pay it, and had the legal capacity to contract and make herself liable for its payment. As she is not averred to be under coverture, she must be regarded, on the allegations of the petition, to have been a feme sole, and having the legal capacity as such to bind herself by her contracts.
The account states that the payment was made on a note executed by herself and her husband. But the...
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C. H. Hyer & Sons v. Morrow
...of the statute of limitation is not material. See Coles v. Kelsey, 2 Tex. 542, 47 Am. Dec. 661; Long v. Anderson, 4 Tex. 422; Page v. Findley, 5 Tex. 391. From the judgment of the justice court, appellant was granted a writ of certiorari, and it removed the case to the county court. In the ......
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Poole v. Rutherford
...Since early days our probate laws have required that suit be brought on a rejected claim for money within three months. In Page v. Findley, 5 Tex. 391, 392, where the early statute is set out, in language similar to that found in Article 3522, Chief Justice Hemphill declared that the failur......
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Kendall v. Riley
...petition. The defense of three months' limitation from the date of the rejection had intervened. See art. 1311, Paschal's Dig.; Page v. Findley, 5 Tex. 391;Danzey v. Swinney, 7 Tex., 632;Crosby v. McWillie, 11 Tex., 96. It is trifling to contend that the three months' restriction is not tec......