52 Tex. 650 | Tex. | 1880
The note in question having been given in consideration of community property, although it might have been avoided by Mrs. Goddin had suit been brought against her in her life-time, or by her administrator after her death by refusing to allow it, yet it was not absolutely void.
The allowance by the administrator and the approval by the chief justice of the County Court, merged the note into a quasi-judgment; and the heirs of Mrs. Goddin should not, years afterwards, be permitted to vacate this judgment by a proceeding in the nature of a bill in equity, without sufficient averments and proof to authorize this.
It appears that Mrs. Goddin signed the note at the request and solicitation of her husband, and by whom, as her administrator, it was subsequently allowed as a claim against her estate. It is not shown that Mather, Hughes & Saunders procured her to sign it, or even knew that she was a married woman, or that the allowance and approval w’ere fraudulently procured by them. It would seem that, relying upon the allowance and approval, they have made no other effort to collect the note, and that, as against the other maker, it would now be barred by limitation.
Under these circumstances, after so long a lapse of time, and after nearly all the principal actors are dead, and with them has passed away the evidence upon which they might have relied to sustain their original cause of action, it would be inequitable to set aside this judgment upon the bare testimony of him who both originated and perpetuated the fraud, if there was any in the transaction; and particularly when this testimony fails to connect Mather, Hughes & Saunders with it, and when it may reasonably be presumed that, if the judgment be vacated, the witness may again receive some of the benefits arising therefrom.
If the claim, which, in fact, should have been paid by the administrator himself, was improperly allowed by him in fraud of the heirs of the estate, as is alleged, and as the testimony would tend to prove, then it would seem that the plaintiffs have a plain and adequate remedy against him on his bond.
Under the circumstances, wo do not think that the court erred in not granting the relief prayed for. The judgment of the court below is affirmed.
Affirmed.
