
    Robert H. Graham v. Wade H. Vining, Administrator of John J. Vining, Deceased
    Appeal from Ned Diver County.
    The owner of a mortgage, made by a person since deceased, must present the same to the executor or administrator of such deceased, before an action can be legally commenced thereon, and the fact of such presentation must be averred in the petition. [Same case, 2 Tex. 433; 12 id. 427; post, 669; 12 Tex. 427.]
    This suit was instituted by appellant against the appellee as the administrator of the estate of John J. Vining, deceased, to foreclose a mortgage made upon the real estate by the intestate, on the 8th day of March, 1844, to secure the payment of a promissory note for $735.50.
    The petition was filed on the 28th day of February, 1845.
    On the 20th day of March, 1845, the defendant filed, his answer, demurring to the petition and assigning, specially, the four following causes of demurrer:
    1st. That the petition contained no equity.
    2d. That the heirs of the deceased were not made parties.
    3d. That plaintiff, before bringing suit, did not present his claim to the administrator for his approval or rejection.
    4th. That more than twelve months had elapsed after the death of the deceased, and previous to the commencement of the suit.
    The district judge being related to the defendant, Simpson H. Morgan, Esq., attorney-at-law, was selected by the parties to preside as special judge in accordance with the provisions of the law, who, after argument had, sustained the demurrer and the plaintiff thereupon appealed to this court.
    Morrill, for the appellant.
    In answer to the fourth exception. I shall only say that the petition does not disclose when the intestate died, or when the administrator was appointed, so it does not appear that twelve months had elapsed after the death of the intestate and previous to the commencement of the suit.
    As to the second cause of exception. Our statutes make no distinction between the real and personal estate so far as the administrator’s power over the same is concerned. Acts of 1836, p. 200, sec. 5. Acts of 1840, pp. 115, 117, 119, secs. 12, 13, 24, 29. The word “estate''’ as used in the statutes referred to, denotes the entire possession. The administrator, therefore, takes possession of all the property in trust to pay the debts and pay the residue to the heirs of the estate, and it is his duty to hold the estate until he is satisfied it is not required for debts; and then, in his discretion, he can pass the same to the heirs. Acts 1S40, p. 120, see. 32.
    I might here inquire what is a mortgage and in whom is the fee? But as far as this suit is concerned it makes no difference; for if it be in the mortgagee, he is before the court in the character of plaintiff, and if in the mortgagor, his legal representative is before the court.
    As to the third cause of demurrer. The objection contained in this exception is based upon the 17th, 18th, 19th, 20th and 21st sections of the act “ regulating the duties of probate courts and the settlement of successions.” Laws of Texas, vol. 4, p. 116. But the objection does not apply to this case. The “ claim ” upon which this suit is founded is a mortgage deed; and supposing this claim or mortgage deed had been “presented to the administrator for his approval ” and the administrator had annexed to the mortgage deed “ a declaration signed by him that he has no objection to the payment of such, ■claim,” the result would have been that this claim or mortgage would in that case “ be ranked among the acknowledged debts of the succession.” This would have been useless, because the mortgage deed was itself an acknowledgment of the debt by the intestate; so much so that even before the mortgagor could be permitted to prove partial payment of the claim, he must make affidavit of the truth of his plea. Acts 1840, p. 69, sec. 1, and p. 116, sec. 21.
    The note usually given is not taken into consideration except so far that its existence in the hands of the mortgagee is evidence that the mortgage is still payable and the legal effect is merged in the mortgage but at the discretion of the mortgagee. If the mortgagee should choose to abandon his mortgage then he could rely upon his note, and in that case, the position assumed by defendant would be correct.
    But this is not what the present plaintiff is attempting to do. He does not desire the administrator to acknowledge the validity of the mortgage or tbe note. But if tbe plaintiff bad actually presented this mortgage deed to tbe administrator and be bad refused to acknowledge, wbat would have been bis course? According to tbe position assumed by defendant, suit should be brought in the district court to have this mortgage claim established, and then tbe mortgage filed “ with the judge of probate to be ranked among tbe acknowledged debts of tbe succession.”
    But can tbe probate court foreclose a mortgage? If so, where is tbe law for it? Or shall tbe death of tbe mortgagor operate as an extinguishment of tbe same? This would be violating the contract between tbe parties, as tbe mortgage provides for tbe mortgagor’s administrators.
    Moreover does not this part of the demurrer operate as a plea to tbe jurisdiction, and if so, should it not have been pleaded as such?
    The petition in this case complies with the statute for bringing suits. It also complies with tbe mortgage act; and there does not seem to be any objection, constitutional or legal, against it. Acts 1836, p. 201, sec. 8; Acts 1840, p. 69, sec. 1.
    Whenever jurisdiction attaches and the party has instituted his suit “to avoid exercising this jurisdiction is equally as much a violation of the constitution, as to usurp jurisdiction not conferred.” Bank of- the United States v. Deveaux, 2 U. S. pond. p. 189.
    
      Duval, for appellee. Martin and Lewis, on same side.
    The demurrer ought to be sustained.
    1st. Because the claim sued on was not presented to the defendant for his approval or rejection prior to- the bringing of such suit. That this should have been done was an imperative requirement of the statute, and must in all cases be strictly observed to authorize suit against an administrator.
    The statute relerred to forbids the bearer of a “claim” against a succession from bringing an action thereon before presenting such claim to the administrator for approval, and if the same was not allowed by him, then he could bring an action to establish it. The object of the law was obviously to prevent unnecessary litigation, and to save estates from a useless expense in costs of suit. It has been contended, however, that a mortgage is not such a “elaim” as the statute intended to embrace. This is á mere assumption which neither the language of the statute or its plain object and intention will warrant. If by the w-ord “claim” as used in the statute, the law had not intended to embrace every sort of demand or debt against a succession, the exceptions would have been mentioned. The generality of the term used shows that no such exception was intended.
    
      If it was necessary under tbe statute to have presented tbe note made by tbe intestate in this case to tbe administrator, why not tbe mortgage which was given to secure its payment? It is shown by tbe record that neither was presented. See Acts of 1840, p. 116, secs. 17, 18, 19, 20, 21.
    By connecting and construing tbe last section referred to with tbe first, it will be still more evident that mortgages were intended to be embraced in tbe term “ claim,” as used in the statute, inasmuch as they are mentioned among tbe “ claims ” to be paid by the administrator, according to tbe order therein specified. See, also, Cummings v. Jones and Barley v. Obevallier, Dallam’s Dig. pp. 531, 555; Benjamin & Slidell’s Dig. p. 643, art. 1; Louisiana Code of Prac. arts. 984, 985.
    2d. Because tbe interests of the heirs of tbe intestate would bave been affected by a sale of tbe mortgaged premises, and they should, consequently, bave been made parties to tbe suit. Here tbe mortgagee was endeavoring to enforce a remedy in rem against tbe real estate of tbe deceased, when tbe heirs or other privies of tbe latter in that estate were not before tbe court.
    3d. Because tbe mortgagee was bound in tbe first place to look to tbe ^personal estate of deceased, before be could be entitled to enforce a specific lien upon tbe realty; tbe former being tbe primary fund for the payment of all debts due by tbe deceased, while the latter can only be made collaterally chargeable. Acts of 1840, p. 119, sec. 29; Toller on Executors, pp. 284, 417, 418; Sea ver v. Lewis, 14 Mass, p. 83; Cope v. Cope, 2 Salk. p. 449; Howell v. Price, 1 P. Wins, p. 291.
   Lipsoomb, J.

The appellant brought suit in tbe district court of Bed Biver county against tbe appellee as administrator, setting forth that tbe appellant’s intestate was justly indebted to him in $735.50; that to secure tbe payment of tbe said debt tbe said intestate bad executed a deed of mortgage on a certain piece of land in tbe town of Clarksville, Bed Biver county; that tbe time for tbe payment of tbe money is past — that it has not been paid. He prays that judgment be rendered in bis favor for his debt, interest and costs and for general relief. He brings tbe said deed of mortgage into court, and prays process against tbe administrator.

There were several peremptory exceptions filed. Tbe court below sustained tbe exceptions and gave judgment for tbe defendant, from which an appeal was taken.

The only exception that we shall notice is that tbe plaintiff bad not averred that he had presented his claim to the a dministrator for approval before the commencement of the suit. It will be found provided by the 17th section of the act regulating the duties of probate courts, and the settlement of successions, “That no bearer of a claim for money against a succession administered by an executor or administrator shall commence an action against such succession before presenting his claim to such executor or administrator;” and by section 18, “ That if such claim be acknowledged and approved by such executor or administrator, he shall indorse or annex to the claim a declaration signed by him, stating that he has no objection to the payment of such claim; after which the bearer of such claim shall submit it to the judge, that it may be ranked among the acknowledged debts of the succession;” and the next section provides that suit may be brought, if it is not so acknowledged when presented.

The object of the above sections manifestly was, to prevent litigation and unnecessary expense to estates, and promote their settlement with as little delay as practicable. If suits were permitted to be brought without first ascertaining by a presentation of the claim, whether it would be contested or not, much of the assets would be absorbed in costs. The language of the 17th section, before cited, is sufficiently comprehensive to embrace every claim for money of whatever grade, upon which suit was necessary to its assertion in a court of law. A debt, secured by a mortgage on specific property, forms no exception. If presented, allowed and

placed on the tableau of acknowledged debts, it can have all the benefit of its specific lien without the necessity of suit. Should the funds of the estate be sufficient, it will be p^id out of the general funds; if not sufficient without sale, the sale will be ordered by the court on the application of the executor or administrator, or on their failure to make such application, of the creditor; and in making the order of sale the judge will have regard to the nature of the claims. See sec. 29, same Act.

This view is fortified by the 21st section of the same law, where the order of claims is classified; and in the conclusion of the section the creditor, who has a lien upon any particular property, is provided for.

In Louisiana, under similar provisions of their law, this doctrine is believed to be well established. It is looked upon as a more convenient and less expensive mode of obtaining the benefit of a mortgage against a deceased mortgagor, than by suit for foreclosure. It deprives the mortgagee of none of his rights, and saves costs to the estate of the deceased mortgagor.

We believe there is no error in the judgment of the court below. It is therefore affirmed. See Swindler v. Peyroux et al. 5 La. 470; Offut v. Hendsley, 9 id. *  