The Treasurer of the State v. J. B. Wygall et al., 51 Tex. 621

Bonner, Associate Justice. In the year 1862 John C. Clark died in Wharton county, Texas, leaving an estate valued at over one-third of a million of dollars. Property of the estate was sold and notes and mortgages taken therefor, and, the heirs being unknown, by order of the Probate Court the assets, notes, and mortgages were by the administrator delivered to the treasurer of the State on September 20, 1866. Under the terms of the statute, in default of heirs the property would escheat to the State.

On March 28, 1871, suit was instituted under the statute in the District Court of Wharton county, against the treasurer, which in effect was a suit against the State, by Bishop Clark and his two sisters, who claimed to be the children and heirs at law of John C. Clark, deceased. At the December Term, 1871, upon verdict of a jury, judgment was rendered establishing their claim as such heirs and their right to the property. This judgment, upon appeal, was affirmed by this court as then constituted. (Honey v. Clark, 37 Tex., 686.) The present suit was instituted against the treasurer by Joseph B.

Wygall and others, claiming to be an entirely different set of heirs of John C. Clark, for the same purposes and for the same property for which the suit of Bishop Clark and others was instituted, and was on former appeal before this court reversed and remanded. (Treasurer v. Wygall, 46 Tex., 447.) The venue having been changed to Travis county, another trial was had on November 24,1878, which resulted in judgment in favor of the plaintiffs, establishing their claims as the true heirs of John C.

Clark, deceased, and adjudging that the treasurer of the State deliver to them all the property, funds, and assets belonging to the estate which had been deposited with him on September 20, 1866, by the administrator. From this judgment the present appeal is taken. The treasurer-defendant in this suit, on behalf of the State, among other defenses, set up the former judgment in favor of Bishop Clark and others in bar of this suit. To this the plaintiff interposed a demurrer, which was sustained by the court; to which the defendant excepted, and assigns this with other alleged errors.

The property sued for was held by the State in trust for the heirs of John C. Clark, deceased, the same to escheat to the State in the event that such heirs did not appear and establish their claim thereto. The object of the suit permitted by the State against itself was, that the heirs could thus assert and establish their claim, and that when this was done they might recover possession of the property. It is in the nature of a proceeding in rem, in which it devolved upon the parties claiming the estate to properly assert their rights.

The record discloses that the present plaintiffs were aware of the suit which had been instituted by Bishop Clark and others for the same objects as this, and which had resulted in a judgment establishing their claim to the property as the heirs of John C. Clark, deceased. It seems to have been their misfortune that they were not permitted to intervene in that suit, and if the facts are true as asserted by them, it is, indeed, a sad commentary upon the history of the times during which that proceeding was pending.

If the State could in any case be shown to have been a party to a fraud, it certainly would not be presumed to have been such party when evidently she would lose all and gain nothing by the transaction. The alleged fraud in that suit cannot be made available in this proceeding, as Bishop Clark and others, who were the plaintiffs and beneficiaries therein, have not been made parties.

If the present plaintiffs were improperly denied the right to intervene in the suit instituted by Bishop Clark et al., or if the court improperly tried that suit, without, of its own motion, having all necessary parties made when attention was called thereto, still that judgment is not void, and stands unreversed and in full force.

If it be conceded that these plaintiffs had no right to appeal therefrom, they doubtless had the right to have made the plaintiffs in that suit parties to this suit, and, by injunction or other appropriate remedy, have delayed them in the final execution of their judgment until they themselves could have been heard and their rights adjudicated. It was not intended by the statute that the State, a mere depositary, should be subject to different adverse judgments by different parties in regard to the same subject-matter.

If so, the treasurer might, as in this instance, be confronted with two judgments requiring him to deliver the same identical property to two different and adverse claimants. Wc do not decide but that in a proper case the plaintiffs in the former judgment against the treasurer, and others who may have obtained property belonging to the estate of John C.

Clark, deceased, with notice of the alleged fraud, might not be made parties to this or some other suit in the nature of a bill in equity to vacate that judgment, and that, if the State still has in possession any of the property, she might also be made a party, and in this way the legal and equitable rights of all parties in interest might be fairly adjusted.

Until, however, the judgment in favor of Bishop Clark et al. is set aside by some proceeding for that purpose, we are of opinion that the same, being a judgment of a court of competent jurisdiction, must be respected to the extent that it would protect the State from a subsequent inconsistent, adverse judgment. In our opinion, then, there was error in sustaining the demurrer of plaintiffs to'the answer of defendant setting up the former judgment in favor of Bishop Clark el al., for which the judgment helow must he reversed.

As the case will be remanded, we will express an opinion upon a question presented by this record, and which, as it is relied upon on demurrer as being fatal to plaintiffs’ cause of action, will arise upon another trial. It is contended by counsel for appellant, that, under the law authorizing suits for escheated property, this suit cannot be maintained against the treasurer for dioses in action, hut for the money only, after the same has been collected.

With the greatest deference for the views of the distinguished jurist who gave his individual opinion to this effect in this case on the former appeal, we are all of opinion, that although the letter of the law would authorize this construction, yet we believe that the evident intention and object of the statute would admit of one more enlarged and comprehensive.

The acts of November 15,1864, (Paschal’s Dig., art. 3676,) and of ¡November 13, 1866, (11th Leg., 236, see. 3,) providing that suits be brought on such assets in the name of the State, was, in our opinion, intended as directory upon the State and the courts to permit such suits to be brought, and the judgments thereon to be binding, in order that due diligence might be used in the collection of these claims.

If, however, in the meanwhile, the assets had, by proper suit in a court of competent jurisdiction, been adjudged to have been the property of certain established heirs of the deceased, it is not perceived what good purpose could be subserved by depriving these heirs of the immediate possession and benefit of their property, or subjecting them to perhaps a higher rate of commission for collecting the same than they would incur as individuals, and in requiring the State, which no longer had any right, present or in expentancy, to these assets, to take upon herself the trouble and responsibility of proceeding with the collection of the same, and which might be indefinitely postponed.

If the State should not succeed in the collection of some or all of these claims, because the parties owing them might be temporarily insolvent, it would not be contended that this should defeat the right of the heirs to the possession and benefit of them for what they might be worth; and it is not perceived that there is any substantial difference between that character of claims and those which could be collected. The heirship being established, the purposes for which the deposit with the State was made were accomplished. The reason of the law having ceased, the law itself would cease.

Besides, it is believed that the same strictness to follow the letter of the statute permitting a State to be sued, should not be required in this character of suit, where the State is a mere depositary, as in other cases. The judgment is reversed and the cause remanded. Reversed and remanded.