Owens v. Mitchell

38 Tex. 588 | Tex. | 1873

Walker, J.

The plaintiff in error in this case brought his suit against the defendant in error and his wards, Mason and Wm. Briscoe. He sues upon an account stated between himself and the defendants, for work and labor.

The petition sets out a liability against the estate of the Briscoes.

Under an order of the county court Mitchell was carrying on a plantation for the benefit of his wards, and hired . the plaintiff as overseer. He might have paid the overseer his wages as one of the necessary expenses, in managing the estate, without proof of the account, further than as to the correctness of the items. There was no necessity for the statutory proof required as to accounts presented for allowance to administrators. The services were rendered under a contract with him as the guardian of the Briscoes’ estate — it may be said in pursuance of his authority from the probate court to carry on the plantation.

Mitchell’s insolvency is set up in the petition, and the plaintiff claims a judgment that shall bind the estate of the Briscoes, which they resist; but upon what ground of equity they should resist the payment of this debt, we are unable to discover. They are trustees of the estate lately held and managed for them by their guardian for all just creditors who have valid claims against the guardian in his fiduciary capacity (2 Story’s Eq., 687), and^ the property is ultimately liable if the guardian failed to pay it. If, then, as is alleged, the guardian is insolvent, and the claim is a just one, and the estate has passed into the hands of the Briscoes themselves, their guardian being discharged from his trust, they are bound to pay it.

° If, on the other hand, Mitchell is still their guardian, and there are assets remaining in his hands, the judgment already against Mitchell should be paid out of such assets.

A court of equity will not allow parties, who are liable for a debt, to shirk and avoid its payment by technical objections, when all parties to be affected by the decree are properly before the court. If in such case the law, technically administered, furnishes no proper remedy, it is the peculiar province of equity to find one.

We think the court erred in sustaining the demurrer, and dismissing the Briscoes from the record.

The facts may show, as set up under the special answers of the Briscoes, that the services rendered by Owen'are not properly chargeable against them; if so, upon the finding of a jury the court will be at no loss to enter the proper decree.

The judgment of the District Court is reversed and the cause remanded."

Reversed and remanded.