Ball v. Hill

Citations

• 48 Tex. 634

Syllabus

<p>1. Limitation—Vendor’s lien—Set-off—Judgment on note no waiver of lien.—Application was made by an administrator de bonis non, in the Probate Court, for an order of sale enforcing the vendor’s lien for the payment of a claim allowed and approved during a former administration, and which at the time of its approval was owned by a firm, one of the members of which was surety on the bond of the administrator who had allowed the claim. The widow and children resisted the application, alleging that the first administrator had squandered the property of the estate, was insolvent, and was owing the estate; that the claim was assigned to the plaintiff with full knowledge of all the facts; also pleaded limitation of three and five years; that the land was the homestead of the family, &c.: Held—</p> <p>1. That the plea of adverse possession is not applicable to a moneyed demand.</p> <p>2.. A proceeding to set off a claim for unliquidated damages against one member of a firm, in a suit by the firm, is not within the jurisdiction of the Probate Court.</p> <p>3. The facts alleged are insufficient to invalidate a transfer of the claim by the firm pending the administration in which the alleged liability of the surety on the bond was incurred.</p> <p>4. That suit has been brought and judgment obtained on a vendor’s-lien note, is not, of itself, an abandonment or waiver of the vendor’s lien; nor is the failure to set up the lien in the affidavit authenticating a claim against an estate, or in the allowance or approval of such claim, a waiver.</p> <p>5. It seems that while the debt is not barred by limitation, but still remains in force, the lien, unless waived or abandoned by other act, is still in force.</p>