# Burke v. Guilford Mortgage Co.

> Court of Appeals of Texas · April 3, 1942 · 161 S.W.2d 574

URL: https://www.frixlaw.com/law-library/cases/9833358

## Case

- **Full name:** Burke v. Guilford Mortgage Co.
- **Court:** Court of Appeals of Texas
- **Decided:** April 3, 1942
- **Citations:** 161 S.W.2d 574; 1942 Tex. App. LEXIS 239
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Bond
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9833358

## Opinion text

On Rehearing.
Appellant and appellee filed motions for rehearing which challenged our conclusions adverse to their respective contentions. We do not recede from our holdings, that the evidence is conclusive that appellee’s claim for money, based upon principal, interest and attorney’s fees of the note indebtedness, was, perforce of Art. 3517 and Art. 3522, a ■ barred debt. • The “claim for money” was extinguished by the failure of the claimant to bring suit against the ad-ministratrix for the establishment thereof within 90 days after it was rejected..
It is urged by appellee that there is no evidence offered showing that the claim of 1932 was ever presented to the administratrix for “her action” thereon, hence, in absence of proof, it will not be presumed that the claim was presented for her action to effect its extinguishment. Art. 3516, R.S. expressly provides, that, “When any claim for money against an
estate is presented to the executor or administrator, properly authenticated; he shall indorse thereon' '* * * that he allows or rejects the claim; or whát portion thereof he allows or rejects, as the case may be.” In this case the claimant presented its claim against the Luttrell Estate, properly authenticated under Art. 3514 “that the claim is just and that all legal offsets, payments and credits known to affiant have been allowed.” We' think" that when the claim was presented, without more, necessarily the implication then arose that it was presented' for the anfión 'of the executor or administrator,' as contemplated by 'the statute. What other purpose could the claimant have had except to secure action of the administratrix to- approve or reject the claim? The claimant evidently recognized the purpose when it filed suit to remove the administratrix, in which it alleged that “* * * on the 17th day of August, 1932, presented its claim to Mrs. A. L. Luttrell, Administratrix of the Estate of G. ,W. Luttrell, deceased, * * * 'but that said administratrix has not acted upon said claim, nor has she, the said Mrs. A. L. Luttrell, complied with the provisions of Article 3537, Revised Civil Statutes of the State of Texas * * *." This allegation is the recital of an evidentiary fact, and while the administratrix entered a general demurrer ánd denial to the 'petition, such did not extinguish the written admission of such fact; the general denial “put the same in issue” (Art 2006, R.S.), and to avoid the admission, put the claimant to the task of proving that 'the claim was not presented to the administratrix for her action.
In the light of the affidavit attached to appellee’s claim of 1932, we cited in our original opinion Subd. (a), § 1, Art. 3515a Vernon’s Ann.Civ.St., which we concluded became a rule of probate procedure, evidencing the election of the claimant to have its claim classified and allowed as a matured claim. On further investigation, it seems that our Supreme Court, in Laubhan v. Peoria Life Ins. Co., 129 Tex. 225 , 102 S.W.2d 399 , has definitely held .that this statute having been passed in 1931, subsequent to the date of the contract, as in this case, it could not be given a retroactive effect, and, in consequence, the holder of the secured claim could proceed only under the probate procedure as it existed at the time of the making of the contract, that is, to have the contractual obligation performed, *580 when classified in due .course of administration, as a class claim to which it belonged. The presentment of the claim for allowance was not the only evidence of the maturity thereof, as might well be inferred from the statute. We are not relegated to the statute in holding .that the claim was presented to the administratrix as a matured claim for money against the estate. As stated in our original opinion, the notes evidencing the claim were payable in monthly installments, in various amounts, beginning on the first day of July next after May 23, 1929 (the date of the notes) and running over a period of 144 months; and the notes further provide for acceleration of maturity of unpaid principal, interest, and attorney’s fees, in case of failure to pay any installment when due, at the election of the holder thereof. The claim on its face shows that the claimant, as the holder of the notes, exercised the option in accordance with the .terms of the notes, and sought the collection of the full amount of 10% attorney’s fees because of the default in payments; thus we think, aside from the statute, the claim as presented shows that, on August 17, 1932, the notes had become a matured obligation, starting at that time the four years’ statute of limitation (Art. 5527), and, aside from that, the claim having been presented for allowance and not acted upon by the -administratrix, and no suit having been filed to establish it, as required by law, the claim for money was extinguished and could not thereafter be revived.
In our original opinion, because of the failure of the administratrix to approve the claim, and the claimant to institute suit within the time prescribed by law, we used the term, as being applicable to the claim, that it had become “dormant”. It was not our intention to hold that the “claim for money,” evidenced by the notes, became "dormant” — that is, in a state of rest or inactivity, which could be subsequently revived. The claim, as shown from our opinion, was barred by the lapse of time, in so far as the rights of the claimant against the estate of G. W. Luttrell were concerned; but, we do not think it is within our province to say that the notes and deed of trust wholly lost their vitality against Mrs. A. L. Luttrell’s estate, or her heirs or legatees who may have acquired the property encumbered by the deed of trust and notes signed by Mrs. Luttrell; nor do we think that the deed of
trust, expressly authorizing, empowering and, in effect, requesting the mortgagee’s trustee, or the legal holder- of the notes, to pay all taxes, insurance, and assessments of whatever nature that may from time to time fall due and be unpaid on said premises, bars enforcement of the payments thereof, made in accordance with the terms of the deed of trust. It will not be presumed that the payer of the taxes and insurance premiums, over a period of many years after the note indebtedness became barred, was a volunteer; it is more in consonance to reason that the taxes and insurance were paid under the deed of trust provisions. The mere fact that the debt was barred does not, in our opinion, make against the deed of trust lien securing the taxes and insurance subsequently paid. The deed of trust was a valid subsisting authorization for such payments. In the case of Stone v. Tilley, 100 Tex. 487 , 101 S.W. 201, 202 , 10 L.R.A., N.S., 678, 123 Am.St.Rep. 819 , 15 Ann.Cas. 524, opinion by Judge Brown for the Supreme Court, cited by appellant, presents a different question:, In that case, the deed of trust and all rights thereunder had been foreclosed; hence the opinion quotes from Vincent v. Moore, 51 Mich. 618 , 17 N.W. 81 : “What, the complainants were compelled to pay for the protection of their mortgage did not constitute a separate and independent lien on the land. It could become a lien only in connection with and because of the mortgage, and could not exist independent of" it. When, therefore, complainants took proceedings which resulted in a satisfaction of the mortgage, any lien which may have existed before for taxes paid was necessarily discharged, whether the amount paid was claimed in those proceedings or not.” Such is not the case at bar:. The claimant’s mortgage notes were never paid and the deed of trust never extinguished. The contractual rights in the deed of trust were voluntarily exercised in the payment of taxes and insurance subsequent to the presentment of the 1932 claim, therefore, were not available at the time the claim was presented, as a claim against the estate. Whatever fact or circumstance may have prompted the payment of taxes and insurance is not revealed by this record; hence the courts must assume that such were paid in accordance with the terms of the deed of trust.
We find no merit in the motions for rehearing; accordingly, they -are overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9833358. Public record. Not legal advice.