Western M. & I. Co. v. Jackman

• Citation: 14 S.W. 305
• Parties: WESTERN M. & I. CO. v. JACKMAN <I>et al.</I>
• Decision Date: 13 June 1890
• Court: Supreme Court of Texas

14 S.W. 305

WESTERN M. & I. CO. v. JACKMAN et al.

Supreme Court of Texas.

June 13, 1890.

Appeal from district court, Hays county.

S. Fisher and Browne & Beaseley, for appellant. W. O. Hutchison and Denman & Franklin, for appellee.

GAINES, J.

A demurrer to the petition in this case was sustained upon the ground that the court did not have jurisdiction of the cause of action. Whether that ruling be correct or not is the sole question presented upon this appeal. In 1885, S. D. Jackman executed a promissory note payable to the appellant, the plaintiff in the court below, and, in order to secure its payment, at the same time executed a mortgage upon a tract of land which is described in the petition. He subsequently died, and appellee W. T. Jackman was appointed and qualified as administrator of his estate. Default having been made in the payment of the interest upon the note, and the debt having become due according to the terms of the contract, the appellant presented the note and mortgage duly verified for allowance to the administrator, who placed upon it the following indorsement: "Presented on the 8th day of October, 1887, and examined, and allowed to be paid in due course of administration, but the lien given on the 200 acres of land set apart as a homestead is rejected, and also the lien on the undivided half interest in the remainder of the land that belongs to the children of S. D. Jackman by his first marriage. [Signed] W. T. JACKMAN, Adm'r of S. D. Jackman, Deceased." The mortgaged premises embrace 1,500 acres, but at the time the claim was presented 200 acres thereof had been set apart to an unmarried daughter and four minor children of the deceased as his homestead, by the county court of Hays county. The land was acquired during the existence of the relation of husband and wife between S. D. Jackman and the mother of the defendants, who are their children. The mortgage was executed after the death of the wife. The administrator of the deceased husband, and the heirs of the deceased wife, were all made parties defendant, and the petition after alleging the facts as above stated prayed for a judgment for the debt and interest, for the establishment of a lien upon the entire tract of land, and for its foreclosure by a sale by the administrator for the satisfaction of the judgment, and for general relief. The petition contained other averments intended to show that the entire tract of land was subject to their mortgage, but in the view we take of the case these need not be further noticed.

It is seen from the statement just made that, according to the allegations of the petition, the administrator allowed the claim for the debt, but rejected the claim for the lien as to a part of the premises upon which the mortgage was executed. The question is: Did the refusal of the administrator to recognize a lien upon a part of the land claimed to be subject to the mortgage authorize the plaintiff to sue in the district court to subject the entire land to the payment of the debt? So far as we have been able to ascertain, the question has never been distinctly decided by this court. It depends upon the proper construction of articles 2018 and 2028 of the Revised Statutes, which, so far as this question is concerned, are the same as the corresponding provisions of the act of 1848. Under the Revised Statutes it is only where a claim for money against the estate of a deceased person has been rejected by the administrator that the holder of a claim is entitled to bring an independent suit for its establishment. Article 2028. The language of article 2018 is: "No executor or administrator shall allow any claim for money against the...