Simpson v. P. & E. Reily & Co.

Citations

• 31 Tex. 298

Syllabus

<p>The claims against estates of deceased persons required to be sworn to by the 49th section of the act of 1848 are “ claims for money.” (Paschal’s Dig., Art. 1309, Note 483.)</p> <p>Where a creditor had presented his account against an estate, making no reference to any mortgage or lien, which account was allowed and approved, and afterwards the creditor presented a petition to have a lien declared, (see statement of the case,) it was held, that the previous allowance of the claim for money gave the county court jurisdiction of a hypothecation of collateral securities and of a constructive mortgage on land and chattels.</p> <p>The 59th section of the act reads as follows: “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 cdpy thereof served upon the executor or administrator, with a citation requiring him to appear and answer such application.” (Paschal’s Dig., Art. 1319, Note 493.) This negatives the idea that a mortgage is a claim for money; it refers to a claim secur.ed by a mortgage, which claim has been allowed — not which mortgage has been allowed.</p> <p>The administrator is required to make all proper defenses, and he can plead non est factum, or any other plea that would defeat the request of the plaintiff.</p>