| Tex. | Jul 1, 1859
We can perceive no error in the judgment of the court below. All the parties to the note sued on, appear on the face of the note to be principals. ¡None of them sign as sureties. If any of them were, in fact, sureties, and if the sureties desired to be protected, as such, by the decree of the court, that might have been done by proper pleadings and proof, under the provisions of the act of the'seventh legislature, on the subject. But there were no pleadings to require the court to adjudicate the question of suretyship between the defendants.
It was proper for the plaintiff, in the court below, to prosecute his demand against the surviving makers of the note, in the District Court, and to pursue the estate of Yoakum, in the County Court, in the usual manner, without making the executrix of Yoakum’s will, a party to the suit in the District Court. It was also proper for the District Court to decree the foreclosure of the mortgage, so far as the interest of A. P. Wiley, in the mortgaged property, was concerned. (See Martin v. Harrison, 2 Texas Reps. 456, and later cases.) The decree recites, that the court ascertained that A. P. Wiley’s interest in the mortgaged property, amounted to one-half of it. The judgment is affirmed.
Judgment affirmed.