Gray v. McFarland

29 Tex. 163

• Court: Texas Supreme Court
• Decided: January 15, 1867
• Status: Published

Opinion

Moore, C. J.

This suit is not to be regarded as an action against the administrator of Harris, and the sureties on his hond, to establish a claim against said Harris’ estate, or to subject effects in his hands in a fiduciary capacity, to the payment of the plaintiff’s demand. The cause of action set forth in the petition is the failure of Antry, in not paying the money claimed, as ordered by the county court, to keep the conditions of his hond, as administrator, by well and truly performing the duties required of him by law as such administrator. The authority to give the order in question is conferred upon the county court by the plain language of the statute. This order therefore is a couelusive and binding judgment upon the parties and their privies as to all points directly involved and necessarily determined by it. It absolutely determines appellee’s right to payment of the amount mentioned in the order, out of money belonging to said estate then in said Antry’s hands, and it impressed upon him the duty as such administrator of its immediate payment. His failure to comply with the obligation imposed by this order upon him made his sureties immediately and primarily liable for the amount of damages appellee sustained by this breach of the conditions of the bond.

The exceptions to the plea of payment were properly sustained. Said plea is vague, uncertain, and indefinite. It does not show at what time the payment was made which it seeks to set up; whether before or after the judgment of the county court, upon which appellee sues. For is it averred that appellee ever accepted in payment the notes with which it is alleged to have been made, or, in fact, that anything was or could have been realized from them.

There is no error in the judgment, and it is therefore

Affirmed.