15 Tex. 44 | Tex. | 1855
The answer of the defendant sets up two distinct grounds of defence; which are relied on in argument by the appellant. 1st. That the plaintiff was not entitled to sue as administrator ; 2nd. That the contract was without consideration.
It might suffice to dispose of this appeal, that the averments of matters of fact, in the answer, are not sufficient to warrant its conclusions, either as to the right of the plaintiff to sue, or the failure of consideration. It may be true, that administration upon the estate of the plaintiff's intestate was granted in 1838, and that it was determined by operation of law in 1839 ; and yet, the estate may not have been administered, and, for
But whether the plaintiff was rightfully administrator, and as such entitled to sue, is immaterial, as respects the plaintiff’s right to maintain the present action. We have heretofore held that, upon a contract made with an administrator as such, he may sue in his own name, or as administrator at his election. (Gayle et al. v. Runnels et al., 1 Tex. R. 184, 189.) The plaintiff might treat the words “as administrator,” &c., as mere descriptio persones, and maintain the action in his own name. Having the legal title to the note in himself, it being payable to him, he may maintain the action in his own name, though the equitable ownership be in another. (11 Tex. R. 142.)
It is unnecessary to enquire, in this case, whether a failure of consideration, in the matter and manner alleged, could have availed the defendant, if well pleaded. If true, as stated, that the sale of the certificate by the administrator was without authority, and the title remained in the heirs of the intestate he should have caused the heirs to be made parties, in order that the question of title might be adjudicated ; and he should at least, have restored, or offered to restore the certificate to the plaintiff, or the heirs, if entitled. It is very clear that he could not retain the property purchased at the sale, with the chances of mating good his title, and at the same time refuse to pay the purchase money. The answer, therefore, was rightly adjudged insufficient in respect to both grounds of defence relied on.
It is objected to the judgment, that the Court erred ia refusing the defendant’s application for a continuance. But the continuance being asked for the sole purpose of obtaining evidence which, under the pleadings, could not avail the defend, ant, was properly refused. A continuance will not be granted
Judgment affirmed.
