Cunningham v. Taylor

20 Tex. 126 | Tex. | 1857

Hemphill, Ch. J.

This cause having been submitted by the defendant in error on a suggestion of delay, we will examine whether there was any sufficient cause for suing out the writ of error.

The plaintiffs in error, who are plaintiffs below, sought a perpetual injunction restraining an order of sale on a judgment «recovered against them by the defendant in error, in the District Court of Bastrop county, on two notes of hand given for the purchase money of a lot of land in the town of Bastrop; the Court decreeing also that the premises should be sold in satisfaction of the vendor’s lien. The purchaser, J. R. Slocumb, the intestate of L. C. Cunningham, one.of the plaintiffs in error, the husband of Sarah, and the father of the other plaintiffs, had departed this life before the institution of the suit on the notes of hand, and it is alleged in the petition on the notes that they were, duly accepted by the administrator, and affirmed by the Chief Justice óf the County Court.

One of the grounds upon which an injunction is now sought against the judgment is, that the notes having been allowed by the administrator, and approved by the Chief Justice, the District Court had no jurisdiction, but that the County Court was the only forum having cognizance of the cause of action, and jurisdiction to enforce the lien and the payment of the notes. This position we believe to be sound, and in conformity with the rules and provisions of the statutes regulating the estates of deceased persons. The point is too plain for argument.

As notes merely, they could be paid only through process of the County Court. As equitable mortgages, they are claims for money within the meaning of the statute; (Hart. Dig. Art. 1156 ; 1 Tex. R. 639; 7 Id. 625; 2 Id. 433; 16 Id. 472;) and, on acceptance and approval, the mode of proceeding to enforce them in the County Court is prescribed by statute. (Hart. Dig. Art. 1168.) In Robertson v. Paul, 16 Tex. R. 472, it was held that a mortgage or deed of trust, with a power to sell, could not be enforced by the trustee after the death of the mortgagor, but must be presented, as other claims, for allowance; and the effect of the judgment was, that when allowed and approved, or established by suit, it should be certified to the County Court for settlement in the due course of administration. There can be no doubt about the course of proceeding, and that it must be in the County Court, after a mortgage has been allowed and approved. When a claim on mortgage is rejected by the administrator, or disapproved by the Chief Justice, and suit is brought in the District Court, there might be some reasonable doubt whether the judgment should, in conformity with Art. 772, authorize the Sheriff to seize and sell the property; and if the proceeds of the sale be insufficient, that the balance be paid in the due course of administration; or whether the debt, with the mortgage, should be established merely as a claim against the estate, certifying the same to the County Court for payment in the due course of administration. It was intimated in the case of Danzey v. Swinney, 7 Tex. R. 618, that in case of rejection of a mortgage claim, it might not only be carried to judgment in the District Court, but that the encumbered property might be seized and sold by the Sheriff in satisfaction of judgment; but the better opinion seems to be that the judgment of the District Court should merely establish the mortgage, remitting the creditor to the County Court for satisfaction of his claim. The policy of the statute is, on administration, to subject the whole of the estate to the supervision .and control of the County Court, for the payment of debts, the adjustment of the equities and preferences of creditors, and for the distribution of the property. By Art. 1168, Hart. Dig., § 59 of the Act of 1848, a creditor of an estate, holding a claim secured by mortgage or other lien, which claim has been allowed and approved, or established by suit, may obtain from the Chief Justice an order for the sale of such property, &c. This Section recognizes the right of a creditor, whose mortgage has been established by suit, to enforce the same in the County Court; and it may well be contended that the Art. 772, which was passed two years previously, was superseded by the later provision, giving the County Court authority to order a sale of the property held under mortgage. But where the mortgage has not been rejected, but has been approved and allowed, it has not been doubted anywhere but that the County Court has the jurisdiction for the payment of the claim. The fact that the lien on these notes is merely an equitable mortgage, can make no difference. If the term mortgage be not sufficiently comprehensive to include the vendor’s lien, yet the statute giving the remedy in the County Court is not limited to mortgages merely, but to mortgages or other liens. (Art. 1168, Hart. Dig.)

The plaintiffs in error should have appealed from the original judgment. But their default in this respect does not operate such a forfeiture of their rights as to defeat their application for an injunction against the plaintiff in the judgment, where the ground is the want of jurisdiction.

It might, under certain circumstances, affect the question of costs. The plaintiff will suffer but slight damage in this case. He has been paid a portion of the judgment; and his claim being accepted and approved, he can apply to the County Court (the proper forum) for the collection of the remainder of his claim.

It is ordered that the judgment of the District Court be reversed, and that this Court do render such judgment as to perpetually enjoin the decree and order of sale as prayed for in the petition for injunction.

Reversed and reformed.