Clifford v. Campbell

65 Tex. 243 | Tex. | 1886

Stayton, Associate Justice.

There can be no question as to the right of the plaintiff in error to have had appropriated to the payment of her probated claim the proceeds of the property on which she had a lien, if there had been no one having a preferred claim. Her claim, when probated, was properly classed as a claim of the third class, and under the law she was compelled to surrender so much of the proceeds of the property on which she had a lien as was necessary to discharge claims of the first and of the second class, it not appearing at the time the probate court made an order to that effect that there was any other property of the estate out of which the first and the second class claims could be paid.

The agreement made by her agent and affirmed by the probate court was, in legal effect, that she would surrender so much of the proceeds of the property on which she had lien as was necessary to satisfy first and second class claims, which is exactly what the law would have compelled her to do had the property of the estate, as all parties then supposed, consisted solely of the proceeds of the property on which she had lien.

The agreement made by her agent, considered in connection with the orders of the probate court, needed not the aid of extrinsic evidence to show its real character. Had it been known that there was other property of the estate, out of which the first and second class claims could be paid, as was afterwards discovered to be true, the probate court would or should have appropriated the entire proceeds of the property on which she had lien towards the payment of the debt due to her.

The property subsequently discovered was sold by the administrator for $710, and out of that the plaintiff in error was entitled to have paid to her a sum equal to that which had been paid on first and second class claims out of the proceeds of the first sale, on which she had a lien, for she is entitled to be subrogated to all the right which creditors of the first and the second class would have had against the funds last received, had not their claims been satisfied out of funds to which the plaintiff in error was entitled, at a time when all parties believed that there was no other funds ont of which such preferred claims could be paid. Instead of this, as the judgment now stands, she is made to pay out of a fund to which she was clearly entitled, the amounts due on first and second class claims, and is permitted to share in the fund out of which these claims should have been paid, only as do the holders of fourth class claims.

The record shows that she was entitled to receive a sum equal to the entire proceeds of the property on which she had a lien. To give her this it was necessary to add to the sum which she had received such sum as was taken from the fond to which she was entitled to pay first and second- class claims. After such sum was taken from the proceeds of property on which she had no lien, she was entitled, upon the balance of her claim, to share pro rata with fourth-class creditors any fund which might remain in the hands of the administrator.

There is nothing in the record to estop the plaintiff in error from demanding and receiving what we have indicated she is entitled to; and, if the administrator has improperly appropriated to the payment of fourth class claims so much of- the fund received on the last sale of property that there does not remain in his hands enough to satisfy her demand, as above limited, then he may be made responsible for any deficiency that may exist. Evans v. Taylor, 60 Tex. 422.

The judgment of the court below will be reversed and the cause remanded, with instructions to the district court to enter a judgment in accordance with the rights of the parties, as indicated in this opinion.

Reversed and Remanded.

[Opinion delivered January 12, 1886.]