Selkirk v. McCormick

33 Tex. 136 | Tex. | 1870

Denison, J.

This was originally a proceeding in the County Court of Matagorda county, acting in probate matters upon a petition for the sale of property to pay a claim.

At the June term of said court the prayer of the petitioner was granted and an order of sale decreed. An appeal was then taken to the District Court, and- by a decree of that court, rendered at the Spring term 1868, the decree and order of the County Court was reversed and set aside.

. Erom this last decree an appeal was taken to this court. The facts in the case are substantially .as follows: Lucy Selkirk, executrix of the will of James H. Selkirk, asks, in the County ' Court, for an order directing A. P. McCormick, executor of the will of O. K. Reese, to sell property of his testator's estate to pay a claim held by her against that estate, which was based upon a note, bearing date the twelfth of March, 1858, for the sum of seven hundred dollars, with interest at ten per cent, from date, payable to Buckner McCoy or order, and signed by Chas. K. Reese. This note was regularly verified by the affidavit of McCoy on the nineteenth day of January, 1859, and presented to the , said executor, A. P. -McCormick, and allowed by him as a just claim against his testator’s estate, and this allowance was approved by the Chief Justice on the seventh of Eebru^ry, 1859. On the tenth of the same month -Buckner McCoy, for value received, transferred and indorsed this claim to James H. Selkirk.

On the trial, the defendant offered in evidence the following note, with indorsements as an offset:

“ $431 48. Lavaca, Texas, March 1, 1858.

!! One day after date, I promise to pay to the order of J. W. Randall & Co. four hundred and thirty-one dollars and forty-eight cents, value received, at their office, Lavaca, with interest one per cent, per month from maturity. “BUCKNER McCOY.

“ Due March 3, 1858.

“ No. 119 ”

“ (Endorsed.) 431 48.—Note.

<-B. McCoy.

“ March 1, 1858. . “ J. W. Randall & Co.”

It does not appear from the record that James H. Selkirk had any notice at the tim§ of his purchase from McCoy of the existence of the claim set up as an offset; he was consequently an innocent purchaser and entitled to full payment of this claim.

The judgment of the district court is reversed and the decree of the county court affirmed, and the cause remanded.

Reversed and remanded.