156 S.W. 537 | Tex. App. | 1912
On the 11th day of October, A.D. 1908, J. Y. Stewart, Sr., and wife, A. D. Stewart, conveyed to the defendant Elma Callis the W. 1/2 of section 61, in block No. 3, H. T. C. Co. survey, situated in Scurry county, Tex., and upon said date the said Elma Callis, with her husband, executed and delivered to J. Y. Stewart, Sr., as a part of the consideration for the payment of the land, six vendor lien promissory notes for the sum of $400 each, the deed and notes expressly reserving the vendor's lien as security for the payment of the same; and thereafter, on April 7, 1910, Stewart indorsed in blank, and transferred to Mrs. M. J. Webb a feme sole, the notes; also transferring in writing the vendor's lien, and prior to said transfers John R. Smith also indorsed the notes in blank for a valuable consideration for the benefit of Mrs. Webb, and J. Y. Stewart, Sr., having died and administration having been made upon his estate, Mrs. Webb brought this suit against the administrators of his estate, and also against Elma Callis and husband, C. H. Callis, the makers of the notes, and J. R Smith as indorser. After the institution of the suit, Mrs. Webb having died, her heirs were suggested as proper parties plaintiff to the suit, and by supplemental petition alleged the lack of necessity of any administration upon her estate; that no debts were owing by the same, which was sufficiently proven. Before the death of J. Y. Stewart this record discloses that the Callises, his vendees, mortgaged the same land to him as security for the payment of an indebtedness created after the original conveyance by him to them, and under a foreclosure of this mortgage the title of Elma Callis and husband was divested out of them and revested in the said J. Y. Stewart, Sr. The plaintiffs in their petition do not allege the presentation of the vendor's lien notes to the administrators of the estate of J. Y. Stewart, and in lieu thereof state: "That the amount of the indebtedness herein sued for, which the estate of J. Y. Stewart, deceased, will ultimately be bound, if any, in satisfaction of the indebtedness herein sued on, is an indefinite amount, and cannot for said reason be intelligently presented to the administrators of the estate for allowance and payment until after the sale of the above-described property under the foreclosure proceedings." The administrators denied liability of the estate as to one of the notes; also specially pleading that the proceeds of sale be applied to the judgment against them as administrator, and in the event the sale of the land is insufficient to pay the judgment that they have judgment against their codefendants for the full amount, with a demand for subrogation. Judgment was entered by the district court of Scurry county against the administrators of said estate, as well as *538 against the makers of the notes, and the said John R. Smith as indorser upon the same; the administrators, the only defendants, appealing in said cause.
First The administrators, appellants herein, assign "that the district court erred in granting judgment, * * * for the reason that there was no evidence showing that the notes sued on and used as a basis of this cause of action by plaintiff were ever presented to the administrators of the estate of J. Y. Stewart, deceased, prior to the time of filing this suit," clearly presenting the issue in this character of an action involving different litigants, and the rights of other parties, whether the district court has jurisdiction to render judgment upon the notes to foreclose the vendor's lien and order a sale of the property for that purpose without presenting them to the administrators.
Second. The amount of the liquidated demand in this case is $2,860, which, if it were only the simple adjudication of a debt and lien against an estate, the claim would necessarily have to be presented, and, if allowed, would be dominated by the probate statutes and the county court. We think it is clear from the authorities in this state that, if the probate court is unable to administer the rights of the parties where they are so correlated to the cause of action as that the district court would be the proper forum for the administration of the remedies as affecting the different and conflicting rights of the parties, the probate court would be devoid of jurisdiction, and that of the district court would attach. In this matter it is clear that the plaintiff would have been unable in the probate court, even if the administrators had allowed the vendor's lien notes as a claim against the estate, to have obtained judgment against Elma Callis and her husband, the makers of the notes, and against John R, Smith, who indorsed the same before the transfer by J. Y. Stewart, Sr., to Mrs. Webb, having no jurisdiction over that part of the subject-matter of the suit. Again, the probate court would have been devoid of jurisdiction for the purpose of rendering judgment in favor of the administrators in this matter as against Elma Callis and her husband on account of suretyship of the deceased, J. Y. Stewart. While this question, so far as we are able to ascertain, upon an investigation of the authorities, has ever been directly decided, and while, of course, it has been definitely decided in this state from the time of Robertson v. Paul,
Third. The appellants also complain that the judgment of the district court in this matter should be certified to the probate court for its enforcement, in the event we overrule the other contention as to the presentation to the administrators, on the proposition that no court, except the county court, has a right to divest title in real estate out of the estate of decedents, and the order of sale should issue out of that court, and even though the district court have exclusive jurisdiction over the suit. In this distinct proceeding, if the jurisdiction of the district court attaches, we think it is to be invoked practically for all purposes, for the reason that upon examination of the statutes with reference to the divestiture of title and enforcement of claims, this character of judgment, we think, clearly is not within the purview of the articles of those statutes for that purpose. The rights of Smith and defendants Callis are just as prominent and substantive as the rights of the estate; they have equities with reference to this estate, and the defendant Smith also would be clearly entitled to subrogation under certain conditions, and the kind and character of sale contemplated by the probate statutes being to some extent different from the order of sale following a judgment in the district court, we can see no reason why the district court in furtherance of the execution of his judgment should not issue the order of sale, and a sale to be made thereunder, and that the independent parties in this suit, on account of their rights, affected by this litigation have that right without their equities being affected by the probate statutes with reference to the order of sale contemplated tin those enactments. Articles 3488, 3489, 3494, 3495, 3496, New Revised Statutes.
Fourth. However, whenever the rights of Smith and Callis are eliminated with reference to this estate, the district court has no right by its writ to subject other portions of the estate of J. Y. Stewart upon a deficiency judgment and execution based upon it. The rights of the estate in the event of such a demand arise and the district court would have no right to impound the remainder of the estate for that purpose; the matter of costs, priority of claims, allowances, if any, bring into existence the probate statutes, and the jurisdiction of the probate court, for the enforcement of such a deficiency judgment as an independent demand against said estate, would arise; and it is adjudged by this court that the provision for execution for the satisfaction of any unpaid balance upon the judgment is not applicable as a writ for the enforcement of same against said estate, and to that extent only the judgment of the lower court is reformed.
All assignments are overruled except as to the extent indicated, wherein we reform the judgment, and the judgment of the trial court is in all other respects affirmed.