Wiley v. Pinson

• Decision Date: 01 January 1859
• Parties: A. P. WILEY AND OTHERS v. J. J. PINSON, EXECUTOR.
• Court: Texas Supreme Court

23 Tex. 486

A. P. WILEY AND OTHERS

v.J. J. PINSON, EXECUTOR.

Supreme Court of Texas.

1859.

Claims against the estates of deceased persons, must be presented and rejected, before an action will lie; and, therefore, the legal representatives of one of several joint makers of a promissory note, cannot be joined in an action against the surviving makers, unless the claim has been rejected.

The interest of a surviving joint mortgagor, in the mortgaged property, may be sold by the decree of the district court, without joining the legal representatives of the deceased joint mortgagor.

In order that a surety in an instrument may protect himself, as such, by the decree of the court, he must show that relation by proper pleadings and proof.

ERROR from Houston. Tried below before the Hon. Charles A. Frazer.

This was a suit brought by the defendant in error, against A. P. Wiley, W. M. Taylor and John L. Hall, in July, 1857, on a joint and several promissory note, for $410, dated 4th March, 1856, payable twelve months after date, the consideration of which was thus recited in the body of the instrument: ‘The same being the purchase-money for the homestead tract of Luke Johnson, and containing 830 acres, lying in Houston county, Texas, and by Yoakum and Wiley this day purchased at executor's sale; and we hereby give to said executor, a lien upon said land, for payment of said moneys.” Signed and sealed by H. Yoakum, A. P. Wiley, W. M. Taylor and John L. Hall.

This instrument was set out in the petition, which alleged the death of Yoakum, but did not make his legal representatives parties; and prayed for judgment against the other defendants for the amount sued for, and a foreclosure and order of sale of the interest of the defendant Wiley, in the land, which was alleged to be an undivided half thereof.

The defendant, Taylor, pleaded that the executrix of H. Yoakum, deceased, who had been duly qualified, etc., had not been made a party defendant, and that the said H. Yoakum was one of the principals in the note sued on, and he (Taylor) was surety only, and not liable to be sued, without joining the principal.

The defendant, Wiley, excepted to the petition, because it appeared therefrom that all the necessary parties defendant had not been joined.

To the pleas of the defendants, the plaintiff excepted, and amended his petition by alleging that, in May, 1858, the claim sued on had been duly authenticated, presented, and allowed by the executrix of the last...