Graham v. Vining (2 Tex. 433, 1847)

Mr. Justice Lipscomb

delivered the opinion of the court.

The appellant filed his petition against the defendants, in substance as follows, i. e.: “That on the 8th day of March, 1844, John J. Yining,.since dead, being indebted to petitioner the sum of seven hundred and thirty-five dollars and fifty cents, payable on or before the first day of January thereafter, with ten per cent, interest upon the same, from the time of payment, to secure the payment of the said sum at the said time, the said John J. Yining mortgaged to petitioner a certain tract of land situated in the town of Clarksville in said county, being lot No. 7, in block No. 3, in the said town, which deed of mortgage was on the day of the execution thereof duly presented to the recorder of said county for register, and in due time recorded; that during the year 1844 the said John J. Yining departed this life intestate, leaving as his heirs at law, his mother, Martha Yining, and his father, Wade H. Yining; the latter was appointed administrator of the estate of the said John S. Yining, which office of administrator he still holds; that within twelve months after the said Wade became administrator, the said mortgage deed was duly presented to him, and that on the 26th of July, 1847, the said plaintiff made oath that the amount for which the said mortgage deed was given was unpaid, and that on the said 26th of July, 1847, duly presented the said mortgage deed, as well as the note referred to them, together with the certificate of the probate judge that the plaintiff had made affidavit that it had not been paid, to the said administrator, and demanded his acknowledgment, and that the said administrator refused to acknowledge the same; avers that the succession of John J. Yining is indebted to him in the sum aforesaid, with interest from the 1st day of January, 1845, which is secured by the said mortgage; prays that Wade H. Yining, as administrator and heir at law of John J. Yining, and the said Martha Yining be cited to defend and show cause why the said mortgage shall not be foreclosed, and that petitioner have judgment for the foreclosure of the same according to the statute in such cases made and provided, and for such relief as by law he may be entitled.”

The defendants filed a general demurrer, with several exceptions, and then pleaded several pleas to the merits, and among others the following, which is deemed the only one that it is material to notice; it is in the words following, i. e.: And for further plea in this behalf, the said defendants say that the said ’Wade H. Yining was duly appointed administrator of the estate of the said John J. Yining, deceased, at the June term, 1844, of the probate court of Bed Biver county, and that the said Wade II. Yining, administrator as aforesaid, caused to be inserted in the Northern Standard, a public newspaper, published in the town of Clarksville, the county seat for the said county of Bed Biver, public notice, notifying all persons of his said appointment as administrator as aforesaid, and also notifying all persons holding claims against the said John J. Yining, deceased, to present them in the time prescribed by law, or else they would be barred, which notice bears date the 5th day of July, A. D. 1844, and was published the time prescribed by law, as will appear by reference to the said publication, here to the court shown; yet these defendants aver that the said claim and mortgage was not presented until long after twelve months had expired from the publication of said notice, to wit: not until the 26th day of July, 1847, whereby these defendants say that the lien created by said mortgage is forever barred and lost, and that the same cannot be enforced against the estate and succession of the said John J. Yining, deceased, and that the claim of the said plaintiff to the said sum of money in his said petition mentioned, is also barred and lost from the same cause, all of which they are ready to verify.”

The court overruled the demurrer, and the cause being submitted to the judge, the parties waiving the intervention of a jury, a judgment was. given for the defendants, from which the plaintiffs appealed. The following statements of facts is sent up to this court, signed by the counsel for the parties, and approved by the judge, i. e.: “In the above cause, after submitting the case to a special judge, without the intervention of a jury, the defendants admitted the execution and recording of the mortgage by John J. Yining in his lifetime, and admitted that Wade H. Yining was appointed [438] administrator, and is now administrator; that Wade H. Yining and Martha Yining are the heirs at law of John J. Yining, deceased; that the said mortgage was presented for acknowlment on the 26th day of July, 1847; admitted that the said mortgage was filed by Amos Morrill, in the office of the clerk of the district court of Ned River county, in a former suit for the foreclosure of the said mortgage, in which said Robert H. Graham was plaintiff, and "Wade H. Yining, administrator as aforesaid, was defendant, and that the said Wade H. Yining was clerk of the said court.

“Plaintiff proved that said administrator had filed an inventory of the estate of John J. Yining, deceased, but had gone no further.

“Plaintiff admitted that Wade H. Yining was appointed administrator, and advertised, and that the mortgage was presented on the 26th day of July, 1847, as set forth in the defendant’s plea.”

.In a former suit between the same plaintiff and the defendant Wade H. Yining, as administrator of John J. Yining, for the recovery of the same money, this court at the last term decided that the suit could not be maintained against the administrator, unless the claim had been presented to him within the time prescribed by our statute, and he had refused to acknowledge it, and that the debt being secured by a mortgage by the intestate, formed no exception. This suit is brought on the same cause of action as appears by the record, and the former judgment was pleaded in bar, but for the purpose of reviewing our opinion in the former case, and as this is different in this particular, that the other was against the administrator only, whereas, in this, the heirs at law are joined with the administrator, we will not pass on the plea of autrefois acquit, pleaded by the defendants in the court below.

Our former opinion rested entirely on the construction of the act of the congress of the republic of 1840, entitled “ an act regulating the duties of probate courts, and the settlement of successions.” In the oath prescribed for the administrator by the 2d section of the act, it will be found that the administrator is required to swear that he will return a true inventory of all said estate, whebh&r real or personal, of the deceased, so far as the same may come to his knowledge and a true account of sales of said administration, as required hy law.

The 4th section requires that the administrator shall give bond in at least double the estimated amount of the estate.

The 11th section requires that appraisers shall be appointed of the estate of the deceased, “who shall return their appraisement on oath, in such time as the court shall appoint, of all the real and personal estate of such deceased as may come to their knowledge.”

We refer to the above provisions of the act of 1840 to show that the administration of all the estate, real and personal, is conferred on the administrator, and that it is different from the common law rule, that the administrator had nothing to do with the realty, his administration being confined to the personalty alone, but with us, he is bound by his oath and by his bond to administer all without distinction, and upon this ground we have ruled that the administrator can sustain an action in his own name for land belonging to his intestate, Thompson v. Duncan, 1 Tex. 485, because his undertaking is to administer all the estate.

The 16th section of the act provides, “ That it shall be the duty of executors and administrators, within two months after granting letters testamentary or letters of administration, to publish in some newspaper printed in the republic, a notice requiring all persons having claims against the estate of their testator or intestate to exhibit the same within the time limited by law, or the same shall be barred; which notice shall state the time of granting such letters testamentary, or letters of administration, and shall continue to be published once a week for six weeks, and the claimants shall have twelve months from the date of letters testamentary, or of administration, to present their demand.”

The construction given to the section just cited by this court, in the case of McDonald v. Hadley and wife, at the last term (see 1 Tex. 490), was, that if the claim was not' presented within the twelve months that it would be completely barred, although there might be assets left of the estate after the pay■ment of tliose debts that had been presented, that it barred the claim and did not merely postpone it.

By the 17tli section of the act it is provided, “ that no bearer ■of a claim for money against a succession administered by an executor or administrator shall commence an action against such succession before presenting his claim to the executor or administrator.”

The ISth enacts, that if such claim be acknowledged by the executor or administrator, he shall indorse or annex to' the claim a declaration signed by him, stating that he has no objection to the payment of such claim; after which the bearer of such claim shall submit it to the judge, that it may be ranked among the acknowledged debts of the succession. And by the 39th section it is enacted, that if the claim be not acknowledged and approved by the executor or administrator, the owner of the said claim, for the establishment thereof, may bring his action against the executor or administrator before a justice of the peace or the district court of the county where the said succession is opened, and may obtain judgment as in ordinary cases. And by the 20th section it is enacted, “ that the creditor who has obtáined such judgment or the acknowledgment of debt can only obtain the payment of it currently with the other creditors of the succession, unless it be such a privileged claim as ought to be paid without delay.”

By the 21st section it is enacted that the debts due by any testator or intestate shall be paid by his executor or administrator in the order following, to wit: “ Funeral and other expenses of last sickness, charges of probate of will or of letters of administration, judgments, mortgages and executions, the oldest first, then all other debts; and no preference whatever shall be given to creditors in an equal degree where there is a deficiency of assets, except in the case of funeral expenses •and those of the last sickness, and costs of court, judgments, ■executions and mortgages, the oldest of which shall he first paid; or in those cases where a creditor may have a lien on ■any particular part of the estate.”

It will be seen by the extracts we have made from the act !to regulate proceedings in the probate court, that an administrator tabes on himself the administration of the whole estate' of the deceased, both real and personal; and it is seen that no-person can bring a suit, against the administrator for any claim for money, without first presenting the claim to the administrator for his approval or rejection; and it is seen that such claim must be presented within twelve months from tEe granting of letters of administration, or that it will be barred. The record before us establishes ■ the fact that the claim sought to' be collected by the plaintiff was not presented to the administrator within twelve months after the grant of letters .of administration. Does the fact of the debt being secured by a= mortgage deed remove it from the operation of the statute?

The plaintiff’s counsel has labored to establish the affirmative of this proposition, and to limit the operation of the probate law in its action on debts to such as are not secured by a> conventional lien, and to show that a mortgagee is left to foreclose his mortgage and enforce the specific lien under the act authorizing the foreclosure of mortgages on real estate. This act was passed on the 14th day of January, 1840, at the same-session that the probate law we have - been examining was passed, the latter, however, passed on the 5th of February. There is, however, no conflict between them; the former provides a mode for enforcing the collection of money secured by a conventional mortgage on real estate. It is by filing, a petition in the office of the clerk of the district court, where such land, or part thereof, is situated. “ stating the case and the amount of the demand, and describing the property mortgaged; whereupon the mortgagor shall be summoned to appear at the next term of said court to show cause why judgment should not be rendered in favor of the mortgagee for such sum with interest and costs as shall be due on such mortgage, which summons shall be served on the defendant in the-manner, and the same proceeding shall thereupon b'e had as in ordinary cases of civil suits, if the defendant be a resident of' the county ; if not, then notice of the pendency of the said suit shall be given by publication made in some public gazette at least four successive weeks before the commencement of the court in which suit is instituted; and if the defendant should. fail to appear at the aforesaid court, or appearing should show no cause why the mortgage should not be foreclosed, then judgment shall be rendered for said mortgagee so petitioning, and execution issue as in other cases; but if there be any dispute about the amount due on any mortgage, if the' mortgagor shall appear within the time prescribed by the rules of pleading, and make affidavit of a just defense, the court shall order a trial of such facts before a jury as in other cases.”

"We have said that this law does not conflict with the requisition of the probate law, “ that all claims for money against the intestate shall be first presented to the administrator;” so far from it, a mortgage is treated as a monied claim by the very terms of the act directing the mode of its foreclosure. It is the expression of the law against what was the common law doctrine, that the fee in the land mortgaged was in the mortgagee, and the mortgagor was compelled to be the actor' in seeking the right of redemption; and it would seem that under this law mortgages would be held in our courts, as they always have been in chancery, as securities, and not as conveying the fee. This statute makes no express provision for a foreclosure against a deceased mortgagor; it is only directory of the mode to be pursued against him personally, before a judgment could be rendered in favor of the mortgagee for the mortgage debt; and there is not a word in it repudiating the idea that the bearer of a mortgage debt against a deceased mortgagor should be exempt from pursuing the remedy in the mode pointed out by the probate law; and that an ample remedy is afforded the mortgagee in such cases, without impairing his security, will be manifest, as we believe, by a reference te the 21st section cited, wherein the claims of debts are classified for payment, mortgages are included. There can be no ambiguity from the fact that judgment is named before mortgage, because it means that the oldest shall take precedence, whether it be the judgment or the mortgage; and if there had been any obscurity in the expression, it would be fully removed by the last clause, enumerating exceptions to the rule, in which is found the following: “ Or in those cases where a creditor may have a lien on any particular e harred. There can be no doubt but this is a claim for money, and if there had been any uncertainty whether it was embraced in the terms used in the 16th and 17th sections of the law, this doubt would be removed by a reference to the 21st section. We cannot perceive any soundness in the proposition, that although the action may be barred against the administrator, it w7ould not follow that it was barred against the heir. We believe the limitation in the 16th section was intended to give repose to all persons interested, creditors and heirs. Nor can the fact that the administration is not yet closed change the result, we so decided at the last term in the case of McDougald v. Hadley and wife. The point was there directly presented that the succession had not beep closed when the demand was made. The decision of the court was that the claim, not having been presented within the time prescribed, it was barred. We see no error in the judgment, and it must therefore be affirmed.