156 S.W.2d 971 | Tex. | 1941
delivered the opinion of the Court.
The three above-styled and numbered causes involve the right of the creditors of J. R. Murrah, deceased, to set aside a sale of land and other property on the ground that same was made to defraud creditors. The material question to be determined is Whether the claims of the creditors were barred by limitation. We believe that all three cases can be satisfactorily disposed of by a single opinion.
According to the allegations of the petition, Mrs. L. H. Clark and her associates held at' note against J. R. Murrah due August 8, 1932, and C. A. Markward (represented herein by Mrs. Eula Markward, his wife, as executrix) held a note against Murrah due August 11, 1932. On February 3, 1934, J. R. Murrah and his wife, for a recited consideration of $10.00, conveyed to their four children, J. E. Murrah, R. H. Murrah, Dan Murrah, and Tol Murrah, all of their property, including 7462 acres of land and various other property. J. R. Murrah died intestate on February 13, 1934, and no administration was taken out on his estate at that time. On December 17,
Under the provisions of Article 5527 of the Revised Statutes a suit on a written contract is barred by limitation in four years after the cause of action accrues, but under the provisions of Article 5538 of the Revised Statutes in case of the death of the debtor limitation ceases to run for a period of twelve months after such death, unless an administrator of the debtor’s estate shall have sooner qualified. Under these statutes the maximum period of limitation allowed for a suit on a note where the debtor has died in the meantime is five years. From the facts hereinbefore alleged it is apparent that more than five years elapsed after the maturity of the two notes in question before same were presented to the administrator of Hurrah’s estate for allowance, and as a consequence the probate court, and the district court on appeal, properly held that claimants’ right to assert said claims in the probate court as claims against the assets of the estate of J. R. Hurrah, deceased, were barred by limitation. The "probate court, having taken jurisdiction of the estate, had a right to pass on the validity of said debts as claims against said estate. Under these circumstances the judgments of the trial court of the Court of Civil Appeals in the probate case must be affirmed.
However, the mere fact that such claims were not timely presented to the administrator as claims against the assets of the estate of J. R. Murrah, deceased, did not bar claimants’ rights to assert as a basis for a suit to set aside said alleged fraudulent conveyance. It is true that it was necessary for such creditors to allege and prove a valid claim against the alleged fraudulent grantor as a basis for their suit to set aside said conveyance. It was incumbent on them to show that their claims were not barred by limitation at the time they filed their suit. McClenney v. McClenney, 3 Texas 192. It appears, however, that they filed their suits to set aside said'fraudulent conveyance within less than five years after maturity of their debts, and that no administration on Hurrah’s estate had been taken out in the meantime. Hence, under the above-mentioned statutes, their debts were not barred by limitation at the time the suits were filed to set aside said fraudulent conveyance.
It was not necessary for such creditors to file their claims
Since the claims were being asserted in the district court, not as claims against the assets of the estate, but merely as a basis for the suit to set aside the alleged fraudulent conveyances, the administrator had no interest in either the validity of the debt or in the property sought to be subjected to their payment, and consequently it was not necessary that such claims be presented to the administrator for allowance and approval, especially where it was shown that the estate was entirely without any assets and that any attempt to collect same out of the estate would be fruitless. Moore v. Belt, 206 S. W. 225, par. 6; Willis & Bro. v. Smith, 65 Texas 656; Cobb v. Norwood, 11 Texas 556, Heard v. McKinney, 1 Posey, Texas Unreported Cases, 83; Ramsey v. Abilene Building & Loan Assn., 57 S. W. (2d) 877.
Although the claims had been rejected by the probate court as barred by limitation at the time same were asserted therein as claims against the assets of the estate, this did not constitute an adjudication that said claims were likewise barred by limitation and therefore invalid at the time same were sued on in the previously filed suits in the district court. It is apparent that by reason of the difference in the dates involved, the claims were barred by limitation when filed in the probate court, but not so barred when the suits were filed in the district court. The district court first acquired jurisdiction of the
According to the allegations in plaintiffs’ petitions in the Clark and Markward cases, the debts were not barred by limitation at the time those suits were filed, and the mere fact that the probate court in a subsequent action had held that the claims were barred when presented in that court did not require a holding by the district court that the suits in the district court were likewise barred by limitation. The court therefore erred in sustaining the general demurrer to the petition in the Clark case and in the Markward case.
The judgment of the trial court and the Court of Civil Appeals in the probate case will be affirmed. The judgments of the trial court and the Court of Civil Appeals in the Clark case and in the Markward case will be reversed, and the causes remanded to the trial court for a new trial.
Opinion delivered December 3, 1941.