Roan v. Raymond , 15 Tex. 78 ( 1855 )

Lipscomb, J.

This suit was brought by the appellants, as the heirs of William H. Roan, one of the Mier prisoners, to recover the amount reported and certified by the Auditor and Comptroller, as due to the heirs or representatives of the said Boan. The circúmstances we will briefly State. Boan, the deceased, was a private in Capt. Ryan’s company, in the expedition, and died in Mexico. After the passage of the law for the relief of the prisoners taken in that expedition, Ryan took out letters of administration in the county of Fort Bend, and procured the certificate of the Auditor and Comptroller for the amount due to the said deceased. This certificate or warrant he assigned to Atkins, who presented the same to Raymond, the State Treasurer, by whom it was paid. This suit is brought against the present appellees, to recover the amount so paid, alleging that the administration to Ryan was void, and that the money so paid to the said Atkins was paid to their use, and also alleging the liability of said Raymond for the payment of the said amount, on the alleged ground, that he had no right in law to pay the said warrant to any person but to the heir of William H. Roan, deceased. There was a judgment for the defendants, from which the plaintiffs appealed.

As to the parties in this suit, if the liability of Raymond for the repayment of the money claimed, jointly with one or both of the other parties defendants, can be sustained, there is no legal objection to the suit being brought in this county, it being the county of Raymond’s residence, and the other co-defendants could be brought in, as they were, by citation to them, running to their respective counties ; but if Raymond was not liable, and the others were, the suit cannot be sustained against them in this county, but ought to have been brought in the county of their residence, or the residence of one of them. We will therefore proceed to enquire into the liability of Raymond ; if he is not liable, the judgment must be affirmed, although' the other defendants, or one of them, may be liable to pay the money to the plaintiffs.

The first Section of the Act of February 9th, 1850, entitled an Act for the relief of certain persons formerly prisoners of war in Mexico, (Hart. Dig. Art. 2712,) fixing the amount to which such persons shall be entitled to receive, proceeds: “ and “ it shall be the duty of the Auditor and Comptroller to issue “ to each of the said volunteers, or his heirs or representatives, “ claiming the same, a certificate for the amount to which he may “be entitled under this Act ;” providing further, “ which certifi- “ cate shall be issued to the person or persons entitled to the “ same, upon making proof as hereinafter required, and shall “ be an audited par claim against the late Republic.”

From the law cited, it would seem that the question as to who was entitled to receive the certificate, or to whom it should be delivered, was one to be decided by the Auditor and Comptroller, and not by the Treasurer, and when presented by the assignee of Ryan, the administrator, it was not for him to enter' into the investigation of the legality of the administration, nor the right of an administrator to receive the certificate, and his paying the amount, as Treasurer, could not render him personally liable, although it may be true that the heirs were entitled to the money, and that it should not be regarded as assets in the hands of the administrator. He could not be required to decide on the legal rights of the parties, at his peril, before paying the certificate, regarded, as it was required by law to be, as an audited par claim against the late Republic.. We shall not, in this case, decide whether the administrator or the heirs were entitled to receive the money. There can be no question, however, but that the administrator can be called upon to account to the heirs for the amount. If he could receive it as assets in his hands, to be administered, and there should be no creditors, he would be compelled to pay it over to the heirs, after deducting the costs of the administration ; and if he could not so treat the funds, but it rightfully and legally went to the heirs, and not to creditors, he would be required to pay it over, as money collected for their use, without any regard to the administration, or any right to compensation for his trouble or reimbursement for costs of the admin: istration. But when called upon by suit, in either his representative character, or personally, the suit must be brought in his own county of residence. If, as before remarked, Baymond had been jointly liable, the suit could have been brought in this the county of Raymond’s residence, and the Court could have sustained the proceedings against all jointly liable with him ; but, as he is not liable, the suit against the other defendants was improperly instituted in this county. Had the suit been brought in the county of Ryan’s residence, the discharge of Raymond would not have prevented a judgment against Ryan, if he was liable. We make these remarks to show the grounds on which this suit cannot be sustained against Ryan, although he may be liable to the heirs. We are therefore of opinion that the Court below did not err in giving judgment in favor of the appellees, who were the defendants in the Court below, and the judgment is therefore affirmed. It cannot, however, prejudice the plaintiffs in any suit that they may institute against Ryan, because the merits of their claim against Mm. has not been adjudicated.

Judgment affirmed.