| Tex. | Dec 15, 1849
The record presents but one question for ouy consid-
It is alleged in the petition that the bond upon which this suit is brought was presented to the administratrix of the deceased 'obligor,-and by her duly accepted, and thereupon duly approved by tlie probate judge, in the year 1817, agreeably to the thirteenth and fourteenth sections of the act to organize Probate Courts, then in force. (Acts of 1846, p. 313.) The fiftieth section of the act. of 1848.(p. 251) directed that no holder of a claim for money against the estate of a deceased person shall bring suit against the executor or administrator, unless the claim has been presented and its acceptance refused by the administrator in whole or in part, or unless the Chief Justice (who is judge of probate) shall have refused to approve so much as may have been allowed by the administrator. But in case of the refusal to allow or approve a claim for money duly presented for that purpose, the fifty-first section of the same, act provides that, tlie holder of the claim may bring suit and recover judgment in any court having jurisdiction of the amount; but no execution shall issue upon the judgment; which shall have the same force and effect as the acceptance of the claim by the administrator and its approval by the Chief Justice.
This statute contemplates only money demands; and upon these it expressly forbids the bringing of a suit., unless the claim shall have’ been in whole or in part rejected by tlie administrator, or its approval refused by the Chief Justice. The determination of the present ease must depend upon the inquiry whether the petition discloses only a money demand; for if it be such, having been accepted and approved, it comes within the. prohibition of the statute, and it was not competent, for the plaintiff to have, brought this suit.
The alleged breach of covenant consists in the. raising of the location by the defendants or their intestate, of the headlight certificate of the latter from the laud contracted to be conveyed to the plaintiff, and the consequent inability of the defendants to make title agreeably to the condition of the bond. For this breach of contract the plaintiff alleges that he, is entitled to recover damages, which he estimates at 32,000. But he does not allege the special facts and circumstances which have occasioned tlie damages claimed. And it is a rule, which ought to be as obligatory here as in England, that unless the damages be such as may be presumed necessarily to result from the breach of contract, it will be necessary to state in what tlie damage consists specially and circumstantially, in order to apprise the defendant of the facts intended to be proved. Thus,_ in an action against the vendor of an estate, it is held that if the purchaser proceed for interest and expenses, lie must declare specially, stating such expenses and the loss arising from tlie not having the use of the deposit money, &e.; otherwise the deposit money only can be collected. (4 Esp. R., 223; 1 B. & P., 306; 13 East R., 98.)
Wliat should be the measure of damages in an action by the vendee against the vendor of real estate, upon the usual personal covenants in a conveyance, is a question which has been much discussed, and upon which very able jurists have differed in opinion. (Sedgw. Meas, of Dam., 151, oh. YI, and the numerous eases there cited and reviewed.)
Iii the States of Massachusetts, Maine, Vermont, and Connecticut, in an action on the covenant of warranty, the measure of damages is tlie value of the land at the time of eviction, without regard to the consideration in the deed. (3 Mass., 523" court="Mass." date_filed="1807-11-15" href="https://app.midpage.ai/document/gore-v-brazier-6403135?utm_source=webapp" opinion_id="6403135">3 Mass. R., 523; 3 Fairf. R., 1; 14 Conn. R., 245; 12 Verm. R., 381.) This also was formerly, though it is not now, the rule in South Carolina. (1 Bay R., 19; 2 McCord R., 413.) And in Louisiana the vendee., on eviction, is allowed the increased value of the laud at the'time of eviction, above the original price; and that value, under certain qualifications, may form part of the damages. Such increase only is allowed as the parties might have had in contemplation at the time of the sale, and not any enormous increase produced by unforeseen or fortuitous causes. (13 La. R., 143.) But in other States tlie rule of the common law has been adopted; and the measure of damages, on a failure of title, is the value of the land at the execution of the deed, and the evidence
It is unnecessary to enter upon a particular examination of the numerous adjudged cases upon this subject, or to determine the question in the present •case; for whatever may he the general rule, there can be no doubt that this plaintiff has stated a case which entitles him (o the purchase-money and interest, and no more. He states the consideration paid by him to have been $1,480. ',IIe states .the contract to convey and its breach. But he does not allege that the land had become enhanced in value at the time of the breach, or any other fact or circumstance to entitle him to special damages. Under the allegations of his petition, the plaintiff-could not be permitted to prove any special'damage; and there could, therefore, no question arise as to his right to recover damages beyond the purchase-money paid by him and interest. The loss of his money and its use is the precise injury which the plaintiff, by his own averments, has sustained; and the reparation of this injury is the utmost extent of the liability of the defendants. The law, therefore, fixing- the value of the use of the money at legal interest constitutes this a claim' for the principal sum paid and interest, and maltes it a mere money demand. The acceptance of this claim by the administratrix, and its approval by the chief justice, give it the force and effect of a judgment rendered in a suit brought upon a rejected claim, under the provisions of the fifty-first section of the act of 1848, before cited. Its payment may be enforced in the ordinary course of administration prescribed bylaw, ill the same maimer as a judgment of the District Court. There was, therefore, no occasion to resort to this action; and the case of the plaintiff is precisely of that character which brings it within the prohibition to sue contained in the fiftieth section of (.lie act of 1848. Had the plaiutiff alleged facts in his petition requiring the intervention of a jury to ascertain his damages, it would have presented a very different question. But as the case is presented in the record, there appears to have been neither the necessity nor right to sue; and the court did not err in dismissing- the case.
Judgment affirmed.