38 Tex. 237 | Tex. | 1873
This is an action brought by the administrator de bonis non of Ball’s estate against his heirs to • turn them out of his homestead by virtue of a real or pretended vendor’s lien claimed by the plaintiff to secure a note for $2000 given by T. H. Ball, deceased, on the sixth of August, 1856, to W. A. Leigh, and due one year from date.
The suit was filed on the eleventh of July, 1871. The plaintiff claims to be the owner and holder of the note.
The note was transferred by Leigh to J. C. & S. R. Smith, and was ^allowed as a claim against the estate of Ball by W. F. Perrie, a former administrator, and the allowance was approved by the chief justice on the fifteenth of September, 1860. The appellants, most of whom appear to be minors, deny all the allegations in the plaintiff’s petition, and aver that if the note formed any part of the consideration for the property in question, no lien was reserved.
The deed from Lee to Ball acknowledges the receipt of $4000, the consideration named. The first error in the proceedings of the District Court to which our attention is called, is that of overruling the exception to the deposition of J. C. Smith, and it does appear to us that if this deposition were admitted at all, it should have been under great caution to the jury. The witness does not answer the cross-interrogatory as to how he obtained the knowledge of the facts to which he testified, but his answers raise the presumption that his evidence was not derived through T. H. Ball, the only source which could have made it competent in this case. His statements consisted rather of deductions made in his own mind, or impressions for which he does not satisfactorily account.
In a case like this the plaintiff must prove that he is a bona fide owner, and the manner in which he became such. The note in this case, by the allowance of a former administrator, and the approval of the probate judge in 1860, became a quasi judgment against the general assets of the estate of T. H. Ball, and should have been paid in due process of administration; and it is very doubtful whether, after so great a lapse of time, a court of equity will allow even a' bona fide holder and owner of the note to change the form of the remedy and proceed in equity to sell the homestead of minor heirs.
The judgment of the District Court is reversed and the cause remanded.
Revebsed and bemanded.