Reynolds Mortgage Co. v. Smith

• Decision Date: 28 January 1926
• Docket Number: (No. 3164.)
• Citation: 280 S.W. 879
• Parties: REYNOLDS MORTGAGE CO. v. SMITH et al.
• Court: Texas Court of Appeals

Page 879

280 S.W. 879

REYNOLDS MORTGAGE CO. v. SMITH et al.

(No. 3164.)

Court of Civil Appeals of Texas. Texarkana.

January 28, 1926.

Rehearing Denied February 11, 1926.

Appeal from District Court, Red River County; R. J. Williams, Judge.

Suit by the Reynolds Mortgage Company against Jennie Watson Smith and others. From an order of dismissal, plaintiff appeals. Affirmed.

See, also, 280 S. W. 881.

Samuels & Brown, of Fort Worth, for appellant.

Austin S. Dodd, of Dallas, for appellees.

HODGES, J.

This suit was filed on October 16, 1924, in the district court of the Seventeenth judicial district of Tarrant county by the Reynolds Mortgage Company against Jennie Watson Smith individually and as the administratrix of her deceased husband, C. C. Smith. Harold Smith, a minor son of C. C. Smith, and the City National Bank of Clarksville, were also made parties defendant. For cause of action it was alleged, in substance, that on September 25, 1919, C. C. Smith and his wife, Jennie Watson Smith, executed a note for the sum of $7,500 payable to the Reynolds Mortgage Company, with interest at the rate of 6½ per cent. per annum. It also stipulated for the payment of attorney's fees in case of default. The interest was payable annually, and was evidenced by ten coupons, one due each year after the date of the note. The first coupon was for $536.25, and the others for $487.50 each. All of those interest coupons were unpaid at the date of the institution of this suit, except the first. To secure the payment of that note and the interest coupons, Smith and wife executed a mortgage on 199 acres of land situated in Red River county, Tex. On the same date, September 25, 1919, Smith and wife executed another note for $1,136.25 payable to the Reynolds Mortgage Company in ten annual installments. The first installment was for $123.75, due November 1, 1920; the others were for $112.50 each. To secure the payment of this second note, another deed of trust was executed by Smith and wife upon the same land, but was made subordinate to the deed of trust executed to secure the note for $7,500. None of the installments of the second note had been paid at the time this suit was filed, except the first. It is further alleged that on January 15, 1921, Smith executed a deed of trust on the same land to secure an indebtedness to the City National Bank of Clarksville, but that deed of trust was inferior to the two previously mentioned. The Reynolds Mortgage Company, for a valuable consideration, assigned the note for $7,500 to the Pan-American Life Insurance Company of Louisiana, and that company was still the legal owner and holder. For the purpose of protecting its own lien, the Reynolds Mortgage Company, prior to the institution of this suit, paid to the Pan-American Life Insurance Company two of the interest coupons of $487.50 each, and those coupons had been assigned to it by the Pan-American Life Insurance Company. It is also alleged that C. C. Smith was dead, leaving his wife, Jennie Watson Smith, and a minor child, Harold Smith; that Mrs. Smith had been appointed administratrix of the estate of her husband.

The prayer was for the debt evidenced by the matured and unpaid interest coupons, and the installments due upon the second note. The petition, also sought a foreclosure of the lien upon the land incumbered to secure the debts.

Upon a plea of privilege the case was transferred to the district court of Red River county. On November 29, 1924, Mrs. Smith appeared in that court and filed a plea in abatement, alleging, in substance, that C. C. Smith died in October, 1923; that she was his surviving widow; that Harold Smith was his minor son and only child; that at the time of his death Smith left a number of debts. The only property he then owned was his community interest in a portion of the land described in the plaintiff's original petition. At the time the deed of trust was executed, the land was his homestead, and the trust deed was for that reason void; that debts amounting to $863.63 on account of the last sickness and funeral expenses of C. C. Smith had been contracted and paid by her out of her own separate funds, and for which she claimed reimbursement; that the land upon which the mortgage company claimed a lien, if not her homestead, should be subjected to the payment of that claim. She further alleged that she had fully qualified as administratrix of the estate of C. C. Smith in the county court of Red River county, and that such administration was then open and pending. She further pleaded her coverture at the time the notes and trust deeds were executed, and that the debts were not those for which she might be held personally liable. It was also alleged that the claims upon which the suit was founded had not been presented to her as administratrix for allowance. Upon a hearing on that plea the district court of Red River county dismissed the case, and from that order of dismissal this appeal has been prosecuted by the Reynolds Mortgage Company.

There is in the record no statement of facts, and there appears to be no dispute about the facts set up in the plea of abatement. We must therefore assume that the judgment of dismissal was supported by the evidence.

It is clear that the claim sued on is one for which the estate of C. C. Smith was primarily liable, and that at the time this suit was filed an administration upon his estate was pending in Red River county. The claims are such as the law contemplates shall be presented to the administration for allowance, and which should be paid in due course of the administration. Rev. Civ. Stat. of 1911, art. 3488. For that reason the county court, and not the district court, was the proper forum. Wilkinson v....