| Tex. | Jul 1, 1877
The 34th section of the act to organize the District Courts (Paschal’s Dig., art. 54) does not give parties an absolute and unconditional right to amend their pleadings at any time before they announce themselves ready for trial. The amendment must not only be made under the direction of the court, and upon such terms as it may present, but the right or privilege of thus amending cannot be exercised in direct conflict with other plain provisions of the same act. (Paschal’s Dig., art. 144.) The right to amend the pleadings is conferred in no more positive or plainer terms, than are defendants’, who plead several matters for their defense, required to file their pleas at the same time, and in due order of pleading. While our statute allowing amendments is certainly unusually liberal—so much so that, counsel say, it “ was no doubt designed to do away with much of the nonsense and 'due order’ of the technical pleading ”—it certainly cannot be held that a party is entitled, as matter of right, to file his defense, except in the due order of pleading. Unquestionably, if a plea had been inadvertently filed, and thereby cut off a substantial ground of defense, the court might and should, on a proper application, permit such plea to be withdrawn, to enable the defendant to plead his several defenses in the due order of pleading;
Aside, however, from the objéction to the time and manner of filing the plea in abatement, appellant has no cause to complain of the action of the court in reference to it. The matters stated were altogether irrelevant to the case before the court. The plea does not deny, but, on the contrary, directly avers, that the legal title to the land, was in Foster when appellant purchased. And it is not pretended that the legal title had become vested in any way in these alleged cestui’s que trust, who, it is claimed, should have been made parties. If appellant had performed his part of the contract and gotten a deed from Foster before his death, it would certainly have been unnecessary for the parties having, as it is insisted, an equitable interest in the money for which it was sold, to have joined in the deed, in order to perfect title. If the legal title was conveyed to Foster with their consent, to enable him to control and sell the land, and he made a bona fide sale of it, unquestionably the parties interested with him, and at whose instance tins was done, could look only to him or his heirs and legal representatives for their interest, and not to his vendee.
The exceptions to so much of the amended answer as alleges a tender of Confederate treasury notes to Tate, the payee of the notes, (who, as appellant well knew, was the mere trustee of Foster,) and as such sets up claim for damages, by reason of the surrender of the notes by Tate to the Confederate States receiver, were properly sustained. These defenses were altogether frivolous. Confederate treasury notes were not a legal tender in payment of debts. If the notes had been payable to Tate in his own right, instead of as an agent, it is unnecessary for us to say he might have refused to receive them, if he thought fit to do so. And if appellant ever paid tire principal of the notes to the Confederate States
There is, however, another ground of error, apparent in the record, of an altogether different character, for which the judgment must be reversed. The notes sued upon were payable to Tate, and though, as is alleged by appellee, they belonged to Foster, he would, ordinarily, have been required to bring suit upon the notes merely in Tate’s name, for his use. Upon averment and proof of his equitable right to the notes, and especially in connection with the absence of Tate from the country, or his death, &c., he could, under our blended system of law and equity, have brought his action in his own name. And, if appellee had probated Ms will in tMs State, it is true, she might, as executrix, have maintained a similar suit.
At the time of Ms death, Foster was a citizen of the State of Florida. His will seems to have been duly probated, according to the laws of that State. Administration upon Ms estate, it is not controverted, was regularly committed to appellee there, in accordance with the provisions of the will. This will has never been probated in Texas, and there has been no grant of administration upon his estate m tMs State.
It is needless to say that the general rule, that a foreign executor or administrator cannot maintam a suit in tins State, in virtue of Ms foreign letters testamentary or of administration, is as fully recognized with us as elsewhere. (Story Confl. Laws, sec. 513.) This proposition is not controverted by appellee’s counsel. They insist, however, that the notes, being personal property, notwithstanding the debtor
Unquestionably, appellee does not show herself within this rule. The copies of the will do not show that she is entitled to these notes, as legatee, or that her ownership of them, as such legatee, has been admitted under the administration on Foster’s estate in Florida. For aught that can be said, from the record before us, the entire estate may be required to discharge its liabilities; and so far from her having a specific right of property in these notes, as legatee under the will, it plainly shows, as we tMnk, directly the contrary.
The will commits the entire management of the estate to appellee, and appoints her sole executrix during her life. It is true, the testator also bequeaths to her his entire estate, both real and personal, but this is upon the trusts declared and set forth in the will. To fulfill these trusts, she is' directed, as soon as can be conveniently and advantageously done, after the testator’s death, to convert the entire estate, with the exception of a few enumerated articles, into money, and to invest it in Government securities, or such other securities as she should think safe. How, certainly, appellee does not get these notes in her own right, but must have them for collection, either as the executrix or trustee for the legatees. The ultimate interest which she hq,s in her own
When appellant pays the notes, he will be entitled to a valid deed for the land. In her petition, appellee alleges her willingness and ability to make such a deed; but evidently she cannot do so until the will is probated here. The answer, however, did not allege, with sufficient.particularity, the defects in appellee’s title, or show wherein she was unable to make a valid deed. Consequently, if appellee had not failed to show a right to maintain her action, there would have been no good ground shown for the reversal of the judgment.
Reversed and remanded.