McCampbell v. Henderson , 50 Tex. 601 ( 1879 )

Moore, Chief Justice.

The death of a defendant in an action of debt, unquestionably, does not ipso facto abate the suit. It merely suspends it until the legal representative of the deceased defendant makes himself, or is made, a party.

When this is done the action proceeds, not as a new suit dating from its revival against the personal representative, but as an action pending from the date of its original institution against his intestate.

An heir can only be held liable for the debts of his aneestor to the extent of the estate which has descended to or vested in him. Ordinarily, the creditor must, in the first instance, bring suit for the collection of his claim against the personal representative of the deceased debtor, and not against his heir. Where suit is brought against the debtor, and he dies, such suit cannot be revived against the heir, unless the plaintiff if suit had not been brought, might bring an original action against him. But if there is no administration upon the estate of the defendant, and the facts show that none is necessary or desired by those interested in his estate, and especially if, owing to the lapse of time, the statute forbids the grant of administration upon his estate, and the heirs are in possession of his property, they are in such sense the representatives of their ancestor, that a pending action may be revived or an original suit brought against them.

On the death of the original defendant, Josephus Love, a scire facias was ordered to issue to his legal representative when known; and at a subsequent term Mrs. Margaret Love, his surviving wife, as the record recites, and sole executrix of his will and universal legatee thereunder, as appellant alleges in an answer subsequently filed, appeared and made herself a party. On her death the action xvas attempted to be again revived against the unknown heirs of Love by publication of a writ of scire facias and the appointment of a guardian ad litem. The case as thus revived coming on for trial, judgment was rendered in favor of the plaintiff1. This judgment, however, on appeal by the guardian, was held by this court to be erroneous, because the heirs, against whom no petition had been filed, were not properly before the court. (42 Tex., 520.) On the return of the case to the District Court the plaintiff1 filed a supplemental petition, alleging, among other things, “that at the decease of said Josephus Love he left heirs of his body to whom the above described tracts of land descended, and which said tracts of land are now held, owned, and possessed by said heirs. Said tracts of land are reasonably worth ten thousand dollars.”

The record shows that more than four years had elapsed from the death of Love. It is not pretended that any representative of his estate had been appointed subsequent to the death of his wife. In view of these facts the averments of appellee seem amply sufficient to warrant a revival of the suit against the heirs. (Gen. Laws, 13th Leg., p. 110; Paschal’s Dig., art. 5460; Patterson v. Allen, supra, 23; The State v. Lewellyn, 25 Tex., 797.)

Whether the heirs of Love had in fact inherited the land, as alleged by appellee, or whether his entire estate had been devised to his wife, as averred in appellant’s answer, was of no moment on the question of the revival of the suit; and on the trial it seems to have been satisfactorily shown that the heirs had inherited lands from their ancestor, as alleged by appellee.

Where the death of the defendant is suggested, and proper diligence is not used by the plaintiff to revive the action, which unquestionably must be determined in view of the peculiar facts and circumstances of each case, the court may no doubt dismiss it for want of prosecution. But while there may have been a want of proper diligence in reviving this case against the heirs, we are not prepared to say that the court erred in not dismissing the case, or holding that it had abated for want of parties of its own motion, or even if an objection of this character had been interposed by appellee; and it is obvious, from what has been previously said, the plea of the statute of limitation presented no valid defense, as the suit when revived must be regarded as pending from the date of its original institution.

In view of the facts presented in the record, the court did not, in our opinion, err in admitting in evidence the written agreement between appellee Henderson and Love, the original defendant. This instrument has been sent up with the .record for our inspection. It is certainly not free from interlineations and erasures; but the reading of it and its general appearance lead to the inference that these interlineations and erasures were probably made contemporaneously with the agreement. Its execution was properly proved, and it was duly recorded within a reasonable time after its date. One of the subscribing witnesses was before the court as a witness on the trial of the case, but no effort was made to impeach its genuineness. The parol testimony for both parties relating to the terms of the contract, or in any way bearing upon them, corresponds substantially with its stipulations. It was fully set out in the original petition; yet Love, in his answer, neither denied its execution nor alleged that it had been altered, but, on the contrary, virtually admitted its genuineness. He based his defense to the action on entirely different grounds.

The evidence shows that the heirs of Love are minors. They are represented by a guardian. The action is for recovery on a demand against their ancestor. The suit is maintainable against them in view of the fact that they stand in his placo and are to be regarded as his representatives. The court, therefore, properly ruled that appellee, not having been called by the opposite party or required to do so by the court, could not be allowed to testify as to any transaction with or statement by the original defendant, Josephus Love, deceased. But, notwithstanding its ruling, the court appeal’s, from the statement of facts, to have permitted appellee to testify, over appellant’s objection, “to the number of broodmares he had received from Love; as to the time the stock was taken from him by Love; that they were driven off" by Love without his consent; and that no such conversation as that related by witnesses Timón and Carson, in relation to the rescission of the contract, between Love and the plaintiff, ever occurred at any time after the contract sued upon was made.” The evidence of appellee touching these matters was, as we think, clearly inadmissible, (Paschal’s Dig., art. 6827,) and should have been excluded. And for the error of the court in not sustaining appellant’s objection to it, the judgment is reversed and the cause remanded.

Reversed and remanded.