Wornell v. Williams

19 Tex. 180 | Tex. | 1857

Wheeler, J.

The question is, whether there was error in the ruling of the Court sustaining exceptions to the plea, and. excluding evidence in support of it; and we are of opinion there was not. The substantive matter of the plea is, that the defendants became sureties for the purchaser of the property, in the expectation and confidence that the administrator would perform his duty to the estate he represented, in taking the mortgage security required by law and the order of the Probate Court. There is no allegation that they were deceived, or induced to become sureties, by any false promises or representations of the plaintiff; or that any actual fraud was practiced upon them. There is a charge of fraudulent combination between the plaintiff and the purchaser; but whether it was for the purpose of defrauding the estate or the defendants, or whether it was intended, or had the effect, to deceive or injure any one, is not alleged. There is no allegation of any actual deception, imposition or fraud, practiced upon the defendants. The only ground for relief, really disclosed by the plea, is, that the plaintiff did not perform his duty by taking the required additional security. The taking of that security should have been contemporaneous with the taking of the note upon which the defendants became sureties. (Hart. Dig. Art. 1181.) If they intended to become such, only upon the taking of the mortgage upon the property, it became them, before giving their note, to see that the mortgage security was taken. There was nothing to prevent them from doing so. If, instead of taking that precaution, they saw fit to trust to the prudence and discretion of the administrator, the estate he represents cannot be made to bear the consequence of the want of their vigilance and care. They cannot make a hardship, against which they had ample power and opportunity to provide, a ground to relieve them from their obligation to the estate. On this ground, it is clear, the Court rightly adjudged.the plea insufficient. It does not become necessary, in this case, to inquire whether, in case of actual imposition practiced upon them by the administrator, they would have been entitled to relief as against the estate, or would have been turned over to their recourse upon the administrator, personally, for the redress of any injury they may have sustained. That question may be considered when its decision becomes necessary. For the disposition of the present case, it will suffiice to say, the exceptions to the plea were rightly sustained, and consequently, the evidence offered in support of it was properly excluded ; and there is no error in the judgment. /

Judgment affirmed.