3 Tex. 93 | Tex. | 1848
Lead Opinion
delivered the opinion of the court,
dissenting.
It is not necessary, at this time, to make a further statement of the case, as we shall have frequent occasion to refer to' different portions of the record. The defendants demurred and answered, and the demurrer was overruled. The record shows that, after the jury had been impaneled, the defendants’ demurrer was argued and overruled, from which we infer that the demurrer was considered as being offered to the amended petition as well as to the original. The time when taken up was-an irregularity in practice. It ought to have been disposed of by the court before impaneling the jury. But this irregularity could not affect the judgment that ought to have been rendered' on it. The correctness of the judgment of the court below, in the judgment on demurrer, will first be examined.
The first ground of demurrer to be discussed is, that the claim against McKinney & Williams is barred by the statute of limitations, as the record shows that the cause of action, if any, accrued prior to the grant of letters of administration on the estate of Walker, which is alleged to have been on the 9th day of May, 1845, and this suit was commenced on the 3d day of April, 1845. The claim set up is for cotton not accounted or paid for by the defendants before that time received.
On the second ground, that plaintiff had not shown any sufficient reason why she had not appealed from the approval of the account, and the order of sale by the probate judge, for the purpose of paying it. She alleges that she could not, within ,the proper time, avail herself of the remedy by appeal, from the fact that Briscoe, the co-administrator, would not join in any efforts to defeat the claim, and, on the contrary, was disposed to pay the same. Had there been any difference between the two, on the subject of the administration, the probate court was the appropriate tribunal for adjusting, and seeing that it was correctly administered- And again, if by his conduct he was betraying his trust, it was in her power to have restrained him, either by applying to the probate court or by resorting to the district court. This she did not do, and her assertion that .she was not able, because he would not join her, is not true in point of fact, because the remedy was ample. The appeal, or ■some other remedy, should have been resorted to. Hot having used any such means, nor given any sufficient reason for not ■doing so, I do not believe that she should afterwai’ds be permitted to disturb the action of the probate court, which I ■conceive to be a judgment on the subject matter, and the petition, therefore, showed no cause of action. • Had the probate judge refused her contestation of the claim, or to allow an appeal, there can be no question that the district court could and would have, in the exercise of its jurisdiction, controlled
On this ground, therefore, I believe the demurrer ought also to have been sustained.
We will next inquire into the correctness of the decision of the court in refusing to give to the jury the second charge prayed by the counsel of Swenson. It is in the words following: “That if the defendant, Swengon, received the account in consequence of the representations of the then administrators that they would pay it, and that it was good, it would be a fraud on the said defendant were those objections now allowed to affect the claim in his hands.” To understand this charge, asked and refused, correctly, it will be necessary to have reference to a part of the evidence on the trial before the jury. The account of McKinney & "Williams against the estate of Walker had on it the following indorsements:
“Fort Bend.— We, the administrators of William Walker, deceased, know no reason why the within account of six hundred and sixty-two dollars, against said estate, should not be paid. MaRY Walker, Administratrix.
“ May 15, 1841. James M. Beiscoe, Administrator ”
“Admitted and allowed May 31, 1841.
“ Wiley Martin, Judge of Probate.”
The account was assigned to Swenson by McKinney & Williams, August 14, 1843.
James M. Briscoe, on his examination, proved that, just before the assignment (about two -weeks), the deféndant, Swen-son, called upon Mrs. Walker with witness, and stated to- them that McKinney & Williams offered to assign the account for a debt that they owed him, and he wished to know, before taking the assignment, whether it was just and would be paid. “ That they assured Swenson the account would be paid, and probably five hundred dollars of the amount out of the then growing crop of cotton; that he stated to them if they had
This was more than two years after the account had been admitted and allowed by the probate judge. Swenson used more than ordinary precaution in ascertaining if there was ar.y objection to the account. The names of both of the administrators were subscribed to its allowance, and from the lapse of time when Swenson presented himself for the purpose of inquiring if they had any objection to its payment, they surely could have determined whether payment would be resisted or not. There is not a word then said about the account being unjust; not a syllable uttered by Mrs. Walker about her wish to resist payment, but that her co-administrator would not join her in its contestation. They both tell Swenson that “ it will be paid, and probably five hundred dollars out of the then growing crop.” This amounts to what Chief Justice Nelso.:', in the Wayland Canal Co. vs. Hathaway, 8 Wend. 483, calls an estoppel in pais. Although not technically an estoppel by release or by deed, yet the .party is concluded from denying it.
If permitted to contradict statements so made, on which the party to whom they were made had acted, such permission might operate to the serious injury of the party who was misled by them. It is clear, if there is anything in the proof, that in the case under consideration Swenson was induced to take the assignment on the statements made by the administrators. There are numerous cases in the books where a party has been concluded by his admissions, and not permitted to set up even an illegal consideration against such admissions. So, where the defendant had given a bond and warrant of attorney to secure a gaming debt, the bond was offered for sale to S., whose attorney applied to the defendant, who said the debt was good and would be paid when due; S. thereupon paid and took an assignment; after this, defendant moved to set aside the judgment, but was held concluded by his representations, on which S. had acted. [Davidson vs. Franklin, 1 Barnw. & Adolph, 142; Hill & Cowan’s notes on 2 Phil. 204;
It is clear, we believe, that the administrator, after having induced Swenson, in this case, to purchase the assignment of the account by her own statements, is estopped or concluded from interposing any defense against the payment of the same.
"Ye are not aware that her suing in a representative capacity can confer on her any right to commit a fraud on an innocent person, and then shelter herself from the consequences of such fraud under the pretext of acting in a fiduciary capacity. As an administratrix, she represented the debt as a good and valid debt, and that it would be paid, and she cannot now be permitted, on any principles of law or equity jurisprudence, to deny it. Tl;e court cannot lend its aid to the perpetration of so much injustice, but Avill leaA^e her to account for her administration, as best she may, with creditors or distributees.
She has placed herself in a position, in relation to Swenson, that, however fraudulent the account may be of McKinney & Williams (of Avhich, however, we have seen no evidence), she cannot be relieved.
There are several other interesting questions arising on the construction of the probate law of 1840, that were discussed Avith much ability in this case, and Ave should have felt bound to have given to them an adjudication but from the fact that those points will be presented in other cases, and we shall have the benefit of again hearing them argued, and a decision on them could not affect the result, in any way, of this case; they will not now be decided.
The judgment is reversed, and the cause dismissed.
Dissenting Opinion
delivered fhe following dissenting opinion:
The view I entertain of the law of this case imposes upon me the necessity of declining a concurrence in the judgment just pronounced. I should be inclined merely to express my dissent, without explanation, did it not seem necessary, in order to avoid misapprehension, to state briefly my reasons for differing from my brethren.
To present clearly the questions upon which we are divided in opinion, it becomes necessary to note, particularly, what I regard as material facts in the case. These are, first, that the “demurrer” was, in form, a general demurrer; and no special causes of demurrer or exception were assigned. 2d. The demurrer was filed to the original petition, and, after the amendment, was not called up or noticed until after a jury had been impaneled to try the issues of fact, and the case was in progress of being committed to them. An inspection of the récord will show that the original petition was filed on the 3d day of April, 1845. The plaintiffs, having “confessed the demurrer,” obtained leave to amend, and filed their amended petition on the 28th day of October, 1845. On the first day of November, 1848, the plaintiffs, by leave of the court, filed a further amendment. At the same term, after the parties had announced themselves ready for trial, a jury had been impaneled and the plaintiffs had read their petition, preparatory to the introduction of their evidence, the defendants read their demurrer, which was overruled.
The defendants relied on other defenses, and contested the plaintiff’s demand on various grounds of law and fact; but the statute of limitations was not made a ground of defense by the
I cannot assent to this determination. It is in direct conflict with former decisions of this court; and is, in my most deliberate judgment, opposed to the best established principles and usages of the law.
I do not question that, under our practice, a defendant may avail himself of the defense afforded by the statute by demurrer, or more properly by exception, when the right of action appears upon the face of the petition to have been barred previous, to the commencement'of the suit. Nor do I consider it at all material in what form the defense is presented. All I would require is that which has been required, it is believed, in every country and every forum in which a law of limitation or prescription has existed, or has been recognized; that is, that the limitation or prescription relied on be made a defense in some form.
In all the common law courts, the statute, to avail a defendant, must be specially pleaded. “It was first ruled (says Mr. Angelí), that, as the statute prohibited actions from being brought beyond a certain period from the time when the cause of action accrued, it was to be taken as an absolute bar, and operated by its own force, and without pleading it. [Brown vs. Hancock, Cro. Car. 115.] Afterwards the judges were
Such, unquestionably, is the effect which has uniformly been given to similar statutes elsewhere; and I entertain the most perfect conviction that it was the intention of the legislature that this and no other effect should be given to the provisions of our statute upon the same subject. This seems to me plainly deducible from its origin and history, and every sound interpretation of its provisions. Its phraseology is not original or peculiar. It is similar to that of the statute of 21 James I., ch. 16, which has been copied with no material variation by nearly, if not quite, every state in the Union; and from the statute book of one of them, it is well known the principal provisions, and especially the first section, of our statute were literally copied. Can it be supposed that our legislature intended a different construction here, of the provisions of the statute, from that which they must have known had been uniformly given to the same language elsewhere? The supposition seems to me totally inadmissible. It cannot admit of a doubt,
“ The American acts of limitations (says Mr. Angelí, p. 17), as they relate to personal actions of every kind, are either an exact transcript of the statute of James, or are a revision and modification of it; and that the mere change of phraseology in the revision of a statute before in force will not work an alteration in the law previously declared, unless it indisputably appear that such was the intention of the legislature, has been expressly decided.” And he cites 2 Caines’ Ca. in Err. 143; 4 Johns. É. 317, 359; 21 Wend. E. 316; 2 Hill (N. Y.) E. 380, which maintain this proposition in the text. ‘‘ If the periods of limitatation be different in different countries or states, and in different actions, yet as the statutes are drawn with slight variations of phrase, and all being in pari materia,, the object and intention being the same, they require a uniform construction.” [Per Abbott, C. J., in Murray vs. East India Co. 5 B. & Ald. 204; and see 3 Gill & Johns. R. 394.] “It is to be remembered (said Mr. Justice Stoet, in Sherwood vs. Sutton, 5 Mason C. C. E. 149) that most, if not all the statutes of limitations existing in the several states in this Union have borrowed the language of 21 James. In all the revisions since the American revolution, the same general enactments have been preserved; and it cannot be doubted that the expositions of the statute which had been adopted in England, both at law and in equity, were well known to those who framed our own. Under such circumstances, it wonld not be unnatural to suppose that these expositions were received as the true interpretation of the text.”
That the words, therefore “ no action shall be brought,” etc., employed in the first section of our statute, were intended by the legislature to receive the same construction here, which the same and similar words have always received elsewhere —
In the case of Petty vs. Cleveland [2 Texas K. 464] we decided, in accordance with this view, that the defense afforded by the statute of limitations could not avail a defendant in this court, unless made aground of defense in the court below. And upon no other principle, as I conceive, can the decision of this court in the cases of Duggan vs. Cole [2 Texas R. 381] and Ennis and Pevnolds vs. Oocke [Ibid. 592] be maintained. The very reverse is the decision in the present case. The former decisions are overruled; and yet there is no attempt to show wherein they are erroneous, to answer the authorities cited in their support, or to demonstrate their 'unsoundness upon principle or authority, by the force of either reasoning or precedent. I cannot regard the present determination otherwise than as the gratuitous interposition for the defendants of a defense which they had declined to make; and for the reason, I must presume, that they knew it would not avail them in consequence of the existence of some acknowledgment or exception withdrawing the case from the operation of the statute, or that they could not justly avail themselves of it. And surely we are at liberty to indulge the presumption that a defendant will not seek to take advantage of the statute when he is conscious that he cannot successfully or honestly do so. ¥e are not to assume that a debtor will disregard the obligation which all must acknowledge does exist, in foro eonsoienticB, to pay a just debt, though the right of action upon it may have been barred by the statute.
I cannot better state what I conceive the true and hitherto un-controverted doctrine of the law upon the subject of this defense, than by repeating the language of the supreme court of Louisiana, that “ the law has provided defendants with the plea of
“That the statute must be pleaded even where the case appears on the face of the declaration to be out of time, has been confirmed in a late case in England.” [Ibid. 312; 3 Scott (C. B.) R. 265; 5 Bing. R. (N. Oases) 713.] And there is no foundation for the supposition that the reason for requiring the statute to be pleaded was, that “the exception could be proven under the indebitas count.” Such a principle is not to be found in the English cases; but a very different reason, as we have seen, is assigned in all the cases, both English and American. Any argument or conclusion drawn from such a supposition must, therefore, be erroneous, and cannot require other answer than a reference to the authorities.
As special reference is made to the case of Coles vs. Kelsey, it appears proper, though it is, perhaps, scarcely necessary, for me to say that I cannot regard that case as, in any respect, a precedent for the present decision. For in that case the statute was specially pleaded and relied on as a defense, and the only defense, in this district court. There was no demurrer, and no occasion for one to present the defense of limitation. There was and could be no question that the statute was well and rightly taken advantage of; and the question in the present case was not presented by the record, and could not possibly have arisen in that case, for the obvious reason just stated that the statute was specially pleaded. The subject of the proper manner of taking advantage of the statute, and whether it could rightly be done by demurrer, was, indeed, discussed at some length in the opinion of the court; but not having been presented by the record, nor suggested in argument, I was not permitted to regard what was said upon that subject otherwise than as extra-judicial, and as intended only
"What was said in Ooles vs. Kelsey of the propriety of taking advantage of the statute by demurrer, I have seen no reason to question; but it appeared to me to have no relation to anything then before the court, and as manifestly has, it seems to me, no proper application to the present inquiry, which is, as I conceive, not whether this defense can be interposed by demurrer, but whether it is necessary that it should have been interposed at all. The present, in my opinion, goes very far beyond even that decision; for here the court interpose for a defendant, or what is the same in effect, allow him the advantage of a defense which he did not make; whereas in that case the defense was specially interposed by the defendant. In that case, moreover, the court remanded the case to afford the opportunity to the plaintiff to amend, by averring a subsequent acknowledgment of the debt in answer to the plea of the statute; but in this they reverse and dismiss, thus precluding the plaintiffs from the opportunity of meeting and repelling this objection to tlieir right to maintain their action. In the former case, the attention of the plaintiff had been specially directed to that defense, and an opportunity afforded to answer it before the case was removed to the appellate court; yet that court remanded for the express purpose of affording another opportunity. In the latter case, no intimation is given of the necessity of amendment, and the statute not being objected by plea or otherwise, no opportunity is afforded to answer it, and the appellate court, instead of remanding to afford that opportunity, dismiss the ease/ assuming, it must be, that there either can
In so far as the decision in Coles vs. Kelsey does not conflict with other decisions of this court equally obligatory upon me, though made without my concurrence, I might feel it my duty to submit to and follow its authority. But were I to adopt that decision in its utmost extent, it could afford me no ground of acquiescence in the present determination.
But the circumstances tmder which the demurrer in this case was presented seem to me to have fully justified the court in overruling or excluding it from consideration.
After the plaintiffs had amended their petition, nothing further was heard of the demurrer until after the case had been put to the jury upon the issues of fact. It was then too late ánder the statute for the court to allow an amendment in case the demurrer should be overruled; and this fact, in my opinion, required its rejection. In Cook vs. Crawford [1 Texas R. 9],
But even if the demurrer was rightly heard under the circumstances, it did not present the defense of the statute of limitations; nor is it pretended that that defense was intimated, even verbally, in argument upon the demurrer, or that it was intended to have been raised by it. As was said by the supreme court of the United States of an objection made under like circumstances with the present: “ This objection was not made in the court below, at the hearing or in the argument, so that no opportunity was afforded to the petitioner to produce any evidence on the subject, or to his counsel to answer the objection. Under such circumstances, it would be dealing to
In Hansborough vs. Towns [1 Texas R. 58] this court say: “This objection, if it be one, was not urged in the court below, and it is now too late to insist on a defect which should have been objected to at the trial,” etc. In O’Conner vs. Towns [id. 107,] it was held that, “ if it do not appear in the record that defective pleadings were objected to in the court below, the defects will be considered here as having been waived.” And in Thompson vs. Duncan, this court refused to entertain questions made in argument here upon the demurrer, because it was not so framed as to present the particular questions for adjudication below. [Ibid. 489.]
That objections not urged in the court below will not be entertained in the appellate court, was repeatedly decided by the supreme court of the republic, as will be seen by consulting the following eases: Daily vs. Chevallier, Dallam, 555; Wescott vs. Menard, id. 503; Edward vs. Peoples, id. 359; Mann vs. Thurston, id. 370; Bailey vs. Haddy, id. 376. If there were any room for doubt as to their coincidence with the settled, uniform practice of all appellate courts, these cases must, it seems to me, be considered in themselves as settling the law here too firmly to be now questioned; and I am thoroughly satisfied of the wisdom and justice of the decisions.
Having deliberately, and witli tbe best consideration I was able to give tbe subject, participated in tbe decision in Petty vs. Cleveland, and tbe other cases I bave referred to in connection with that decision, and being thoroughly satisfied of their entire correctness, I deem it my duty consistently to maintain them so far as my own judicial action is concerned. When convinced of having fallen into error, I shall be ever ready with' tbe utmost alacrity to correct tbe error; but when in my judgment a question has been rightly adjudicated by this court, I shall feel it a duty to abide by tbe decision.