King v. Cassidy

Citations

• 36 Tex. 531

Syllabus

<p>1. K., being tbe assignee and holder of certain incumbrances upon and interests in real estate claimed by C., covenanted with C. that in case the latter should pay off the incumbrances within two years, then he, K., would convey the property toC., his heirs or assigns; and further stipulated that if the incumbrances should remain unpaid at the expiration of the two years, then he would sell the property and apply its proceeds to their liquidation, and would pay over to C., his heirs or assigns, any surplus which might remain of the proceeds after payment of the incumbrances and all expenses. C. died within the two years, having made no payment on the incumbrances; and his administrator sued K. for the property and for an account of rents, etc. K. never authenticated and presented the incumbrances to C.’s administrator for allowance against C.’s estate, but set them up in defense to the suit brought against him by the administrator. Held, that this lino of defense was competent, notwithstanding the omission of K. to probate and present the incumbrances to the administrator. The interest of K. was a vested interest, and to hold it to be defeasible by the requirements of our probate laws, would be to place on those laws a construction which would bring them in confli ct with Section 10th Articl e 1 of the United States Constitution, which prohibits legislation impairing the obligation of contracts. The reasoning of this court to the same effect in Dwight v. Overton, 35 Texas, 390, and Donley & Anderson v. Cundiff, Ib. 741, is referred to with approval; while the apparently contrary ruling of Robertson v. Paul, 16 Texas, 472, is disapproved.</p> <p>2. Article 1310, Paschal’s Digest, which prohibits suit against an executor or administrator on a claim for money, unless the claim, properly authenticated, has been presented, etc., can apply only to such money demands, as can be reduced to reasonable certainty, enabling the holder to verify them by oath. If the claim be