56 Tex. 468 | Tex. | 1882
This was a suit brought to the June term of the district court in 1874 for Polk county by Emma C. Willis, the defendant in error, who sues the unknown heirs of Emily Sanderson, deceased, alleging that she is the legal holder of a note for $123.50, bearing interest at ten per cent., given by the said Emily Sanderson to D. Willis, and payable to him or order. That Emma Sanderson died leaving real estate in Polk county, which vested in her said heirs, and that said debt is a statutory lien on the land. Said note was dated June 30, 1864, payable to D. Willis or order one day after date, bearing said interest of ten per cent, from date until paid.
The petition alleges that plaintiff is the. legal owner . and holder of the note sued on.
The petition alleges no fact showing any special lien
The plaintiff filed several amended petitions, in consequence of the demurrers of defendants to the plaintiff’s pleadings having been sustained by the court. Finally, to the amended petition last filed by the plaintiffs, the demurrers of the defendants seem not to have been presented, and the cause proceeded to trial. The amendments filed by the plaintiff had made as parties plaintiff the heirs of D. Willis, deceased, and specified the land referred to in the original petition as a certain tract of forty acres in Polk county, conveyed by deed to Mrs. Sanderson by R. S. Williamson in 1856. The amendments alleged that D. Willis, their (the plaintiffs’) intestate, died in Polk county on the-- day of-, A. D. 18—; that plaintiffs are his only heirs at law; that there has never been any administration, nor need for any, upon his estate.
Plaintiffs also alleged that there has been no administration upon the estate of Mrs. Emily Sanderson, deceased; that at the time of said Emily’s death her estate was solvent and there were no debts against it except the claim here sued upon.
By amendment filed in June, 1875, the plaintiffs allege that more than four years have elapsed since the death of D. Willis next before the filing of this suit; that there are no debts against his estate; that it is solvent and free of
Plaintiffs allege further that this suit was instituted to prevent the bar of the statute of limitations against this claim, and under a bond for the sum of $500 to secure creditors, if any existed, against the estate of D. Willis, in the faithful payment to them of such sum as may be received by these plaintiffs on account of the claim there sued upon. By a subsequent amendment filed October 7, 1875, plaintiffs alleged that Emily Sanderson died more than four years before the filing of this suit; that plaintiffs had made diligent search to ascertain the county in which Emily Sanderson had died, before commencing this suit, but were unable to do so, and were thereby debarred from obtaining administration upon her estate; and that the defendants, who have filed pleadings in this cause,are the only heirs at law.
The defendants appeal on the refusal of the court to grant them a new trial, and assign numerous grounds of error.
. The thirteenth cause for error assigned is “ that the judgment of the court is not warranted by the law or the verdict of the jury;” and it is assigned as error “that the court erred in overruling the motion of the defendants for a new trial.”
The right of action itself, in order to be maintained in behalf of the plaintiffs and against the defendants, required the support by proof of the exceptional facts stated in the petition and amended petitions of the plaintiffs, which warranted a judgment against the heirs of Mrs. Emily Sanderson.
This proceeding is not based upon any specific lien upon the land -which was decreed to be sold; the cause of action, if one might be made, under the facts which existed when the suit was brought, rested upon a supposed cause of action in personam against the heirs of Mrs. Sanderson, by reason of an alleged acquisition by them of assets of her estate to the extent or value of which they as such heirs would be liable to creditors of their ancestors. See The State v. Lewellyn, 25 Tex., 797; Yancey v. Batte, 48 Tex., 59; 18 Tex., 749; 15 Tex., 399; 14 Tex., 607. The statement of facts shows that Mrs. Sanderson removed away from Polk county, where she lived at the date of the note, June 30, 1864; that she left near about that time; that she had but two children, a son and a daughter. On the trial it was proved that she is dead, but no intimation is afforded through the evidence as to when or where she had died, nor where she resided or lived, or was to be found at any time after her removal from Polk county; nor whether administration had been had upon
The death of her son, Adolphus Sanderson, it was proved, occurred in 1863, whilst his mother still lived in Polk county. Whether he died leaving heirs does not appear. The daughter, Isabella Webster, appeared and answered. The' plaintiffs proved the death of their ancestor, but did not establish where or when he died; and in respect to the affairs of his estate, or the administration thereof, whether there was then, or had been, administration or not, or whether administration had been necessary, or then was necessary; or indeed, as to any fact pertaining thereto, the statement of facts is wholly silent. There was no evidence concerning any of these matters, which, under the plaintiffs’ allegations, it was necessary to show to entitle the plaintiffs to maintain this suit.
The general rule is laid down in the case of Giddings v. Steele, 28 Tex., 748, “ That the heirs cannot sue in their own right as heirs for property of the estate; the executor or administrator must she.” “ There are exceptions to this rule, as when the administration has been .closed, or when there are no debts against the estate and no administration; in these cases, the reason of the rule not applying, the heirs may sue.” Id., 748 (8 Tex., 142).
• The following language is used in the opinion in Giddings v, Steele, supra, p. 748: “It would seem to be a safe rule not to permit the heirs to recover property by suit in their own right unless they make it appear that the administration has been closed, or that the condition of the estate is equivalent to that, by showing that there is no administrator appointed or acting, and that there are no debts against the estate.” 9 Tex., 504; id., 15; 12 Tex., 285; 16 Tex., 335.
The rule of law is, that the necessity for administration must be presumed in every case, unless facts be shown that make it an exception to the general rule (Green v. Rugely, 23 Tex., 539); and in the same case it is laid down “that, as a general rule, there must be an executor or administrator representing an estate to enable a creditor to bring a suit to subject the property of a deceased debtor to the payment of his debt.” And see Ansley v. Baker, 14 Tex., 607; 20 Tex., 129.
The only other evidence besides that which has been stated introduced by the plaintiff was the note sued on, dated in 1864, and the conveyance of a tract of land in Polk county, consisting of forty acres, by deed from R. S. Williamson to Mrs. Sanderson, deceased, dated 30th July, 1856. Upon this evidence the jury found a verdict for the plaintiffs for $123.50, with interest at ten per cent, from the maturity of the note, making $262.30; and also found that the land is subject to the debt. Whereupon the court adjudged that the plaintiffs do recover from the defendants, as the only heirs at law of Emily Sanderson, deceased, the sum aforesaid, with ten per cent, interest and all costs of suit. Also decreed that the defendants are not responsible for the amount of this judgment, except to the amount of property received by them from the estate of their ancestor; and decreed the land aforesaid to be subject to and charged with the lien for the
It is conceived that the evidence in this case did not warrant the judgment in scarcely any respect. There does not appear to be a sufficient basis in the evidence to warrant a specific decree by judging the land subject to the debt sued on; adjudging it subject to a lien for the satisfaction of said debt. It was not so subject under a general charge upon property descending to the heir for the benefit of creditors. The creditor, if entitled to a remedy against the heir, could but subject the property in the hands of the heir to an ordinary execution; he had no specific lien to the exclusion of other creditors on any particular property in the hands of the heir. The State v. Lewellyn, 25 Tex., 799.
The evidence can hardly be said to warrant the conclusion that this property had come to the hands, possession or control of the heir, or at all; or that the heir or heirs, as the case might be, was at the time of suit invested with the title thereto. The utter want of any evidence explanatory of the affairs of the estate of Mrs. Sanderson seems to forbid the assumption that this land may not have been inventoried in the probate court having jurisdiction of her estate, and disposed of in the payment of debts against her estate, or that it may have been in some other mode disposed of in some legal manner, whereby the heirs failed to be invested with the title thereto. It is said in Yancey v. Batte, 48 Tex., 46, “that the responsibility of the heir for the debt or covenant of the ancestor is to be measured, not by the amount of the ancestor’s estate which vested in him, but by the amount actually received. ”
The merits of this appeal do not appear to us to require
The same section in respect to liens provides as follows: “And it is hereby declared that the lawful and bona fide debts due by the testator or intestate are a lien and charge upon his' property in the hands of the heir or legatee, or any other person whose possession or title to the same is not acquired bona fide and for a valuable consideration.” This declaration of a charge or Hen upon the property in the hands of an heir seems to be general and in favor of all creditors alike, but not giving a specific lien to any particular creditor and on any specified property. The purpose and scope of the statute seems
The judgment in this case does not conform to this view of the statute; it is framed upon the theory that the proceeding is wholly in rem, and the decree in effect is a condemnation of the land as upon proceedings to foreclose a mortgage or other specific lien.
The law contemplates a persona! judgment, as has been above explained, and to support which, evidence of the value of the land should have been given. If the land was subject to the debt by reason of the hen contemplated by section 45 above quoted, it would be subject to execution, levy and sale, as in cases of statutory liens given upon lands on judgments under the various laws of this state which have regulated the subject. Those laws conferred upon judgment creditors a general lien upon lands according to their various provisions, but they have never been construed to give to any individual creditor a special lien upon any particular piece of land, unless the same were obtained by levy, attachment or other appropriate means of obtaining precedence and priority.
We are of opinion that the judgment below ought to be reversed and the cause remanded.
Reversed and remanded.