Hall v. Pearman , 20 Tex. 168 ( 1857 )

Hemphill, Ch. J.

The object of this suit is to recover a tract of land which the defendant below claimed through purchase at Sheriff’s sale, and as part of his chain of title sets up a judgment recovered by one “Frisbee, administrator of Bateman, deceased,” against the plaintiff in this action and others. By way of rebuttal, the plaintiff offered to prove by the deposition of the Clerk of the County Court that Frisbee had been discharged from the administration two months prior to the rendition of the judgment. The evidence, on objections by the defendant, was rejected; and the only question is whether this ruling of the Court was erroneous.

The first objection to the admission of the evidence was, that the words “administrator of Bateman, deceased,” are merely description of the person, and may be rejected as surplusage. (Gayle and Gayle v. Ennis & Reynolds, 1 Tex. R. 184.) This position is amply supported by the case cited, with its references and authorities. The presumption is, that suit is brought in the individual right of the plaintiff, when he appends to his name the terms merely “administrator of,” &c., and not in his right as administrator of the deceased. This, from the looseness of pleading, may frequently not accord with the facts. It may be that the suit could be maintained only in his capacity as administrator, and yet the averment be in his own name, appending merely “administrator of the deceased,” and not laying his complaint “its administrator of the deceased.” There is nothing in this case to Show that the suit could not have been maintained in his individual right, and the ordinary and legal presumption must be allowed its full force. The suit being brought by Frisbee in his own right, was not abated or affected by his discharge, before judgment, from the administration.

The second objection to the evidence was, that the defendants to the judgment admitted the right of the plaintiff to recover by not pleading in abatement. The record does not show whether Frisbee was removed from the administration before or after the institution of the suit. As the removal was about two months prior to the judgment, the presumption is that his removal was after suit commenced, and such is the statement, in effect, of appellant in his brief.

This being the state of the facts, the rule in Yeaton v. Lynn, (5 Peters, 281,) invoked by the defendant in error, will, if allowed full weight, be conclusive in support of the judgment.

The letters testamentary in that case were revoked after the commencement of suit by the executor, and the plea of the general issue. It was held, in effect, that the revocation should have been set up by the defendant by plea of since the last continuance, and that as this had not been done, the defendant must be held as having waived the defence, and to have rested his cause on the general issue. On this principle, the defendants should have pleaded specially the removal of Frisbee from the administration. The judgment in the case before us was for the defendant; and there being no error, it is ordered that the same be affirmed.

Judgment affirmed.