I. P. Simpson, Adm'r v. P. & E. Reily & Co., 31 Tex. 298

Morrill, C. J. —The question to be decided in this case is, whether it is necessary to present to an administrator of an estate for approval a mortgage given to secure a debt which had been prosecuted and approved by the administrator and allowed by the judge.

Article 1309 [Paschal’s Dig.] provides that no executor or administrator shall allow any claim for money against his testator or intestate, unless such claim is accompanied with an affidavit in writing that the claim is just, and that all legal offsets, credits, and payments known to affiant have been allowed. It is to be observed that the claims required to be sworn to are claims for money.

The act of 1846, which was repealed by the act of 1848, the one now in force, specified claims for money, personal property, or land to be verified in the same manner that claims for money are by the acts now in force.. [Paschal’s Dig.,] (Art. 1095.) Is a mortgage a claim for money? Mortgages are sometimes executed cotemporaneously with debts, and so blended with them as to form one transaction, and they may be so separate and distinct that the evidence of the debt gives no information' as to the existence of the mortgage. It is the last class to which our attention is called.

And these mortgages do not purport to be claims, but, on the contrary, they expressly refer to claims dehors themselves, and certain provisions to secure the payment thereof. Should the holder of a mortgage make an affidavit in relation to a mortgage that the claim is just, and that all legal offsets, credits, and payments had been made, the claim would necessarily be the one which the mortgage was designed to secure, which in the case at bar had been previously done. But

article 1319 [Paschal’s Dig.] seems to be decisive of the case: “Any creditor of the estate of a deceased person, holding a claim secured by a mortgage or other lien, which claim has been allowed and approved or established by suit, may obtain at a regular term of the court, from the chief justice of the county, where the letters testamentary or of administration were granted, an order for the sale of the property upon which he has such mortgage or other lien, or so much of said property as may be required to satisfy such claim, by making his application in writing, and having a copy thereof served upon the executor or administrator, with a citation requiring him to appear and answer such application.” k The statute negatives the idea that a mortgage is a claim for money; it refers to a claim secured by a mortgage, which claim has been allowed — not which mortgage has been allowed.

The administrator, by this act, is required to make all proper defenses when cited as herein stated, and he can plead non est factum, or any other 'plea that would defeat the request of the plaintiff. The judgment of the district court is Affirmed.