Lewis Ball et al. v. James A. Hill, Adm'r, 48 Tex. 634

Gould, Associate Justice. This was a proceeding on the probate side of the District Court, in which the administrator de bonis non of the estate of G. H. Ball, deceased, being himself the holder of a note on his intestate, which had been by the former administrator allowed, and had been also regularly approved as a claim against said estate, and thereafter had been transferred to him, alleged that said note was secured by a vendor’s lien on certain real estate, and asked for an order to sell the said real estate, for the purpose of satisfying his debt.

The children and surviving mother of the deceased appeared, and resisted this application. They first objected, by plea, to the jurisdiction of the probate branch of the court. The record, however, shows no action on this plea, and no question is presented growing out of it. There was also a plea, or answer, the purport of which was that the holder of the claim had acquired it from the firm of J. C. & S. R.

Smith, who were the owners thereof when it was (on February 1, 1859) allowed and (on September 16, 1860) approved,—no lien being alluded to or sought to be enforced,—and which firm continued to own it throughout the time when the former administrator, Perrie, had charge of the estate; that S. R.

Smith, one of said firm, was one of the sureties on the bond of Perrie, and that the estate had been mismanaged and squandered, and Perrie had so acted as to make himself and sureties liable; that both Perrie and his sureties were insolvent, Perrie having left the State; claiming that the present administrator had acquired the claim 'with notice of these facts, and that, under the circumstances, it was inequitable to allow the lien to be enforced on the homestead of the intestate and his surviving family.

There were also other pleas, stating that the property on which the hen was claimed was the homestead of the deceased, and that the deceased and the defendants (his heirs) had occupied it as such adversely, &c., setting up adverse possession under the statute, both for three and five years. The court sustained exceptions to all these pleas, and in so doing did not err. The plea of adverse possession was not' applicable to a claim for the enforcement of the moneyed demand.

The other answer was, in substance, an attempt to set off against the claim unliquidated damages against one member of a firm, which firm had transferred the claim pending such liability of one of its members. Aside from the fact that such a claim for damages was not enforcible on the probate side of the court, we think the answer fails to state facts which would invalidate the transfer of the claim by J. C. & S. R. Smith, or which would have subjected the claim in the hands of J. C. & S. R. Smith to be reduced or set off by the personal liability of S. R. Smith, to be sued as surety on an administration bond.

There was, however, besides a general denial, yet another answer, claiming that if any vendor’s lien was originally retained, which was denied, that it had been waived and abandoned ; and on the trial, which was had before a jury, the court was requested to charge the jury, “ that if they believe, from the evidence, that no claim for a vendor’s lien was ever set up on the land in question until the institution of this suit in 1871, and that the holders of the note had it established against said estate without claiming lien, you will be authorized to consider these strong presumptions, that if any lien ever existed against the land, the holders of the note intended thereby to waive it,—a rather strong presumption that they did thereby waive it.” This charge was refused.

There was a verdict in favor of the plaintiff, and an order made directing the sale of the land, from which the heirs have appealed. It has been held, that whilst a note is not barred, its lien is not waived by taking judgment on the note alone. (McAlpin v. Burnett, 19 Tex., 500; Roberts v. Johnson, 48 Tex., 137, citing and approving McAlpin v. Burnett.) Counsel for appellants refer to the cases of Rogers v. Green, 35 Tex., 730, and Lawler v. Yeatman, as supporting a,different rule from that laid down in McAlpin v. Burnett. Rogers v. Green was a case of a different nature.

A vendor, by executory contract, was seeking to recover the land itself, under circumstances which made it inequitable for him to do so, and thus rescind the sale, without first repaying what he had received on the land. Here the holder of a claim secured by lien is simply seeking to enforce that lien, and is not attempting to set aside the sale. The facts in Rogers v. Green are so essentially different from the present case, that it cannot be regarded as an authority in point. The opinion, in so far as it is at variance with McAlpin v.

Burnett, is not authoritative, and seems to be founded on a misconception of Roeder v. Robson. Roeder v. Robson, 20 Tex., 754, is certainly no authority for refusing to enforce a lien, because the holder of the claim had taken a personal judgment. The purport of that case, is to deny the right of a vendor by executory contract, at the same time to enforce the contract and to repudiate it. Lawler v. Yeatman, 37 Tex., 669, was a case more nearly in point, where the vendor’s lien was set up, and, after long delay, sought to be enforced against the homestead.

But it is to be remarked, that whilst the court in that case say that-the plaintiff having elected, in 1859, to sue in personam, could not after the lapse of twelve years amend his suit still pending, so as to claim a vendor’s lien, the presumption being that it was waived; that it is- further stated that the plaintiff stood by during the settlement of his vendor’s estate, and saw the property assigned to the widow and minor child as a homestead, when they might, in all probability, had he asserted his lien, have received the widow’s and minor’s allowance from other property.

From this, it is said, they were then-cut off, and that they were not to be thus prejudiced by the laches of plaintiff". These circumstances might well have been regarded as equitably estopping the party from setting up his lien. Ho such facts are alleged or appear in the present case.

It does not appear that the plaintiff or the holders of the note ever waived or abandoned their lien, or acted so as to be estopped from asserting it, unless the lien was lost by the failure to assert it in the affidavit authenticating the note as a claim against the estate, or the failure sooner to-apply to the court for its enforcement. We do not think that the failure to set up the lien in the affidavit, or when the claim was accepted and approved, amounted to a waiver. (See Danzey v. Swinney, 7 Tex., 618; Ayres v.

Waul, 44 Tex., 549.) Hor had the lien been lost by delay in its enforcement, it not having been shown that any one was injured by reason of this delay. At the time this proceeding was commenced, the debt was still in force, and the lien, the incident of' the debt, was still alive. (See Perkins v. Sterne, 23 Tex., 561.) Rejecting the time during which limitations were suspended, and less than tour years is left, after the presentation of the claim, before this proceeding was instituted. Under these circumstances the court did not err in -refusing the instruction asked. The judgment is affirmed. Affirmed.