Wilson v. Kyle's Executors ( 1872 )

Ogden, J.

There was error in the action of the district court in overruling the plaintiffs’ demurrer to defendants’ plea to the jurisdiction of the court in this cause. The action was brought on a partition bond, executed under the authority of Article 1372, Paschal’s Digest, and was a simple obligation, by which the obligors bound themselves to pay the debts due from the estate of Thos. J. Coffee. And the statute provides that “ any creditor shall have the right to sue on such obligation in his own name, and shall be entitled to judgment thereon for the amount of his claim.” The statute further provides that the obligation shall be made payable to the chief justice of the county where the estate is being administered, and shall be filed and recorded in the office of the county court. These provisions of the statute were manifestly for the sole purpose of protecting the interest and securing the convenience of the creditors of the estate about to be distributed. The primary object of the statute was to provide a speedy mode for settling up estates, and giving to heirs and devisees their just proportion of the inheritance, and at the same time to transfer the responsibility of the debts from the estate to the obligors on the bond. We are therefore of the opinion, that on the execution of the obligation sued on, the makers thereof became primarily liable for all the debts due from the estate of Thos. J. Coffee, deceased, as fully as though the transfer had been made during the lifetime of the deceased; and it may be presumed that the distribution of the estate, under the partition bond, was intended to operate as a final closing and settlement of the estate so distributed.

It is true that the statute, as a double security for the payment of the debts, gives the creditors the right to hold each distributee responsible for the proportion he or she received from the estate; but there can be no doubt that the creditor may, if he chooses, look to the partition bond alone for his debt, and if he does so, it is wholly immaterial whether the estate, for the partition of which the obligation was given, is settled or not, or where the same has been, or is being settled. The obligation is a personal one, and the obligors may be sued in the county where they, or either of them live.

Wm. J. Kyle, one of the obligors on the bond, died in Fort Bend county, and his estate was being administered there, and under the statute, that was the only proper county to bring suit against his executors. The reason of .the law for requiring suits to be brought in certain counties,- as given by this court in Finch v. Edmonson, 9 Texas, 510, applies with great force in the case at bar. The executor of Wm. J. Kyle, who re- • sides in Fort Bend county, and who is the only one of the defendants who pleads to the jurisdiction of the court, complains that he, and the estate he represents, is not. forced to answer in a distant county, in a suit upon a simple demand for money. It is believed that not only the law, but the reason for the law, is opposed to the rulings of the court in this cause, and that the plaintiff had a right to be heard in the district court of Fort Bend county. The fact that there is a suit pending in Brazoria county against the administrator of the estate of Thos. J. Coffee, for the same demand, cannot in any wise affect the right to sue in Fort Bend county, since, if his suit was correctly brought in Brazoria county, which is exceedingly doubtful, still he could not demand the payment of the debt but once, and a plea of payment and satisfaction could be entered at any time in either suit; and while we would not hesitate to condemn the practice of attempting to prosecute two distinct suits, in different counties, for the same demand, we can take official cognizance of such cases only as are properly brought before us. For the reasons indicated the judgment of the district court is reversed, and the cause remanded.

Reversed and remanded.