Jones' Adm'r v. Underwood, 11 Tex. 116

Lipscomb, J. We have no doubt that if the facts, presented, stood alone, independent of the fact of the subsequent promise, the appellant would have been entitled to the relief that he sought in his petition for an injunction. The admission of an administrator, or his promise, cannot take a case out of the operation of the statute of limitations. The difficulty,and the one that made it necessary to resort to equity, in this case, arises from the fact, that it having been approved by the Probate Judge, there was no way by which this quasi judgment could be avoided, but by attacking it in this way. In Neill v.

Hodge, adm’r, we ruled, that the approval of the Probate Judge, of a claim allowed by an administrator, was a judgment, on the claim; and that if a claim has been allowed and approved, from ignorance of the facts or fraudulent representations of the holder, the remedy of the administrator is by suit in the District Court. (5 Tex.

R. 487.) We are satisfied with the ruling of this Court, in previous cases, that where a subsequent promise is relied upon to take the claim out of the statute of limitations, the subsequent promise, and not the original note, was the foundation of the subsisting debt against the estate, and that it ought to have been presented with the note, to the administrator; yet, in this case, we are bound to inquire of the equities arising, whether in favor of the administrator or the holder of the claim, and decide according to our opinion of the superior equity, as it is an acknowledged- rule of equity jurisprudence, that he who seeks equity must be prepared to subject himself to the obligation of rendering all that equity can require of him.

There is no controversy about the fact of the creditor holding this subsequent promise, when he presented the note, the original consideration for that promise. Both parties seemed to be equally satisfied with the presentation of the note. liad it been objected to by the administrator, the creditor would, in all probability, have then presented the subsequent promise, with the note ; and if then rejected, he would have been authorized to commence suit, and not before, in the District Court.

By its being allowed by the administrator, as presented, he was most, likely thrown off his guard, and felt that he was secure, and there would be no defence to the debt. It is clear, from the administrator’s own showing, that it was a valid and subsisting debt against the estate of his intestate, at the time the original consideration was presented; and to now set aside the allowance and the approval of the Probate Judge, on file in the Probate Court, would have the effect to defeat a legal and just claim of the creditor, and to punish him for his ignorance, and relieve the administrator for a similar mistake.

This would not be equity, and it would not place the parties in the same situation they were in when the mistake occurred. We think, therefore, that the parties should be left where they had placed themselves, and that there was no error in the judgment of the Court below; and the same is affirmed. Judgment affirmed.