Webb v. Reynolds , 160 S.W. 152 ( 1913 )

Disregarding questions not likely to arise on another trial, I think the judgment should be reversed because of a want of the proper allegation and proof of any right in appellee to recover upon the note sued upon. As alleged and affirmatively shown on the face of appellee's petition, the note in question was the second one in a series of four notes executed by appellant and L. H. Hill on the 2d day of December, 1906, made payable to the order of Laura G. H. Torrence on the 17th day of December, 1907, 1908, 1909, and 1910, respectively; that after their execution, and before the payment of any of these notes, Laura G. H. Torrence died and A. C. Hensley was appointed administrator of her estate, the regularity of the appointment not being questioned; that afterwards, to wit, on the 8th day of June, 1909, as shown by copy thereof set forth in appellee's petition, said administrator and appellant Webb entered into a written agreement which recites that a shortage in the survey of land for which the notes had been given existed and that notes 1, 3, and 4 of the series had been paid by Webb, and which specifically provides that note No. 2 of the series (the one upon which appellee sues), together with the agreement, should be deposited with the First National Bank of Albany, Tex., in escrow, and that no demand for the payment of said note No. 2 should be made until said shortage should be ascertained to the satisfaction of the parties, neither the party who was to ascertain the shortage, nor the time, nor the method of ascertainment being specified. The appellee alleged that he represented the administrator in this adjustment of the controversy existing with reference to the shortage, and that said note No. 2 and said agreement had been "put up with the First National Bank, one of the defendants, to be held until said claimed shortage was determined." The First National Bank of Albany, Tex., was sued among other defendants, against which the prayer was that said bank be required "to produce note No. 2 sued on in this case and held by said defendant in trust in court that the same may be merged into a judgment against defendant S. Webb and L. H. Hill." Appellee alleged the ownership of the note in question in general terms but specially pleaded his title thus: "That said Hensley, administrator aforesaid, has sold and conveyed to plaintiff said note No. 2 of said series described above, also all of the rights, choses in action, liens, and all other rights that said estate of Laura G. H. Torrence had in said note No. 2 of said series for a valuable consideration, which said conveyance is in writing and signed and acknowledged by said administrator of the estate of Laura G. H. Torrence, deceased, whereby," etc. The written transfer of the note, rights, choses in action, etc., thus alleged to have been transferred was not made part of the petition, nor is there any allegation of any kind or character that the sale of the note by the administrator to any person had been ordered by the court as specifically required in Revised Statutes, art. 3480, quoted by the majority. Nor is there any allegation that such sale was ever approved or ratified by the court administering the estate of said Laura G. H. Torrence. Nor is there a particle of evidence from which such order or ratification may be implied. It further affirmatively appears from the petition that appellee's purchase, if any, was after the maturity of the note and with full knowledge of its deposit in the First National Bank; it being alleged, as stated, that appellee acted in that settlement as the attorney for the administrator. The only proof offered or relied upon in support of the appellee's allegations of title is his own testimony to the effect that he was the owner of the note sued upon and the fact that he introduced the note in evidence. In this condition of the allegation and proof, I think the plaintiff wholly failed to make out his case. The administrator in making the sale had no authority whatever in the absence of authority given by the court. He was but an instrument or agent of the court, and authority to make the sale should have been made to affirmatively appear both by pleading and proof, and no presumptions can be indulged in favor of appellee under the circumstances and allegations shown in this case. See Matula v. Freytag, 101 Tex. 357, 107 S.W. 536; Berry v. Hindman, 129 S.W. 1181; Ball v. Collins (Sup.) 5 S. W, 622; Teague v. Swasey, 46 Tex. Civ. App. 151, 102 S.W. 458; Cruse v. O'Gwin,48 Tex. Civ. App. 48, 106 S.W. 757, and authorities there cited; Terrell v. Martin, 64 Tex. 121; Hendrix v. Richards, 57 Neb. 794, 78 N.W. 378; Slusher v. Hammond, 94 Iowa 512, 63 N.W. 185; McDuffie v. McIntyre,11 S.C. 551, 32 Am.Rep. 500; Bates v. Dunham, 58 Iowa 308, 12 N.W. 309.

A careful examination of the authorities cited, which for want of time will not be here reviewed, must bring the conclusion that the title to property of an estate is in the heirs to be administered by the court for their benefit and for the benefit of creditors of the estate, and that a transfer of such property by the administrator, save in the mode pointed out in the law, is void and affords no defense to a suit by the heirs. It may be and is ordinarily true that possession of a promissory note affords presumptive evidence of title in the party producing it, but I do not think such presumption can be indulged under circumstances as here shown. As here shown it affirmatively appears that the bank was in actual possession and that the transfer upon which the plaintiff relies was by an entire stranger to the title. He was neither payee in the note nor heir of such payee, nor was there, as already stated, any order of the probate court authorizing or confirming the sale. Appellee's statement that he was the "owner" of the note was but a mere conclusion and cannot, if intrinsically without merit, be considered as supporting the judgment; it not being the introduction but its merit which gives weight to evidence. See Henry v. Phillips, 151 S. W, 533; 14 Encyc. of Evidence, p. 102, par. 6, and authorities there cited in the note; Sharp v. Baker,22 Tex. 306. The fact that appellee introduced the note in controversy in evidence upon the trial, if under other circumstances affording presumptive evidence of ownership, is not here entitled to any consideration in view of the fact recited in the judgment that the note had been produced and deposited in the files of the court by the First National Bank.

I therefore conclude that article 1906, Revised Statutes, and authorities cited in conjunction therewith have no application, and that the judgment in this case should be reversed, and the cause remanded, regardless of the complaints made of the election of the special judge and of the question whether, upon the face of appellee's petition, he showed that the note sued upon had matured by the ascertainment of the amount of deficiency in the survey referred to.