Gregory v. Hughes , 20 Tex. 345 ( 1857 )

Roberts, J.

The primary object of this bond was to secure a title to one-third of a league of land. The obligation for the sum of one thousand dollars was the security given for the attainment of that object. It is not an alternative contract, giving any of the parties the option to choose between them. It only becomes an obligation for money, in the shape of damages, upon some contingency which gives the obligee the right to so treat it. (Hemming v. Zimmerschite, 4 Tex. R. 159.)

The effort to convert this obligation into a moneyed claim against the estate, is based on the manner in which it is approved by the administrator. The language used is as follows : “I have no objections to the payment of the above bond.” And the Judge of the Probate Court says : “ I approve the above bond.” From the use of the word payment, it is argued that it was intended between the parties to stipulate the amount of the bond, as the damages to be paid; and that it was thus recognized by the administrator as a claim for money against the estate. Admitting the right of the administrator to change the instrument from its primary object, the intention to do so should be plainly manifested. The statute of 1846 (Hart. Dig. Art. 1095,) prescribed “that every claim for money or personal property or for land, before it can be acknowleged, must be verified by the affidavit of the owner before the Judge of Probate or a Notary Public, stating what part is due and unpaid and not satisfied; and when thus verified and presented, the executor or administrator shall indorse thereon his acceptance or rejection, with the date of presentation.”

Whether the claim was for money, or for land, the owner was required to swear, that it was due, unpaid, and not satisfied. The approval of the administrator was but responsive to this affidavit, that he had no objection to its payment as sworn to. That is, if it imported a demand for money, he had no objection to its payment; if it imported a claim for land, he had no objection to its payment. We are thrown back then upon the legal import of the instrument, to ascertain what was intended by the terms used in the administrator’s approval; and it is well settled that it is prima facie a claim for land.

If there were any circumstances, which would have varied this construction, as that it was understood and agreed that the administrator could not make a title for the particular land, and that the sum of one thousand dollars was agreed upon as a substitute for the land, and that that was what was intended at the time, they should have been shown to have existed. In their entire absence in this case, the ordinary construction must be applied, and it must be held, that this obligation was not a" demand for money, and that therefore the decision of the County Court, in dismissing the proceeding was right, and the judgment of the District Court, reversing that decision, was erroneous.

Judgment of the District Court is reversed, and judgment of the County Court affirmed, and cause remanded for observance.

Reversed and reformed.