Eccles v. Daniels (16 Tex. 136, 1856)

Hemphill, C. J.

Harrison Gregg, the administrator of Susan A. Gardner, deceased, in June, 1848, allowed a portion of the account, viz : the sum of one hundred and forty-four dollars, due from the estate to the appellant Eccles, for the hire of a negro boy, for the year 1845 ; and the account was also examined and approved, about the same time, by the Chief Justice.

The creditor, Eccles, having in September, 1854, attempted to enforce the payment of this debt, the appellee, W. Daniels, as administrator de bonis non of the deceased, filed, in Decern' her, 1854, his petition in the District Court to have the allowance and approval of the claim in June, 1848, cancelled and set aside, on the ground that the demand was, at the time of such allowance and approval, barred by the Statute of Limitations, and that the order for payment be perpetually enjoined, &o.

The petition was verified by affidavit. The defendant, Eccles, filed an answer, also under oath. The plaintiff amended his petition, but did not make oath to the amendment; and the defendant amended his answer, also without oath ; and in this amendment he set up that the claim was not barred, the deceased having written a letter about the first of Juanuary, 1845, (which was lost,) but in which she proposed to hire the negro, and promised to pay for his hire at the end of the year, and that the claim was founded on a written contract and not. barred.

The plaintiff excepted to the amended answer, on various grounds, viz: that it was not verified by affidavit, &c. &c. The exceptions were sustained ; and the cause being submitted to the Court, it was decreed that the allowance of the claim, its approval by the Judge, and the order for its payment, be set aside, and the defendant perpetually enjoined from collecting the same.

On the trial, the plaintiff, after offering a transcript from the Probate Court, introduced H. Gregg, who testified that he was the administrator of Mrs. Gardner when the claim was allowed, and that he would uot have allowed it, had he known that the claim was barred by Limitation. On cross examination, he stated that he recollected writing a letter to J. 0. Eccles for the plaintiff’s intestate, proposing to hire the boy at twelve dollars and fifty cents per month ; that at that time, he transacted business for the intestate, and wrote the most of her business letters ; did not recollect whether he signed her name, or whether she signed it herself; that the letter was written in 1844 or 1845 ■ thought it was in 1845 ; that the letter was a mere proposition ; that the negro was hired by Mrs. Gardner for both 1844 and 1845. After the letter was written, the defendant Eccles sent the negro to the intestate. He (the witness) knew of the letter when he acknowledged the claim. The hire of the negro for the year 1845 had not been paid so far as the witness knew.

Various errors have been assigned, and we will proceed to consider the most important points in the case.

This is a suit, in effect, by the administrator who acknowledged the claim, to vacate his own act; the administrator de bonis non being, with some exceptions, merely his successor, and holding the office with like capacity. The acknowledgment by the administrator, and the approval by the Probate Judge, having become a quasi judgment, as we have repeatedly decided, (3 Texas, 93 ; 5 Texas, 490 ; 6 Texas, 166 ; 9 Texas, 517 ; 11 Texas, 116 ; and Moore v. Miller 14 Texas,) it must have (at least in a high degree) all the effects of a judgment in favor of the creditor ; and, as such, it established the right and concluded the matter in controversy. We have held, however, in repeated decisions, that where an account has been admitted and allowed from ignorance of the facts, or from the fraudulent representations of the holder, this quasi judgment might be annulled by a proceeding commenced in the District Court directly for that purpose. (Neill v. Hodge, 5 Texas R. 490.) If the right of the plaintiff to have the judgment of the Probate Court set aside, were subjected to a rigid application of this test, it would not be very clear that he has made out such a case as to entitle him to relief. It can scarcely be pretended that the administrator who acknowledged the claim, was ignorant of the facts. On the contrary he had full knowledge of them, having transacted the business himself, on which the claim arose; and there is no shadow of pretence, that there were any fraudulent representations on the part of the holder. The mistake of the administrator, if any were made, and of the Court, (as may fairly be presumed) was that of law, and not of fact. But admitting, at least for argument, that the administrator, though cognizant of the facts, might, if applying in due time, and where other equities have not intervened, be entitled to relief against judgments on claims which, at the time of the judgment, were barred by the Statute of limitations, yet it devolves upon him to show beyond question, that the claim had been barred. The mere fact that the claim on its face appears to be barred, will not be sufficient. There are various exceptions to the Statute, such as minority, absence from the country,