Solinsky v. Fourth National Bank

HENRY, Associate Justice. The appellee, a resident of the State of Michigan, brought this suit against appellant, who is a resident of this State, to recover upon a promissory note and to enforce a deed of trust upon land in the city of Texarkana, Texas, made to secure its payment. The note was made payable to James Strong. He died, and Minnie M. Strong administered upon his estate in the State of Michigan. The administratrix assigned the note and deed of trust to appellee. Ho administration was opened in this State, and the record does not disclose that there existed here any debts or other demands against the deceased. It is contended that the District Court erred in admitting in evidence the transfer of the deed of trust, because it appeared that it was executed by a foreign administratrix who had no authority to make the transfer. It is the established doctrine in this court that a foreign administrator can not, merely as such, recover in the courts of this State upon a debt belonging to the estate of the decedent. Terrell v. Crane, 55 Texas, 81. In other States the authorities conflict as to the right of the assignee of such an administrator to sue for and recover a debt. In the Hew York Court of Appeals, in the case of Peterson v. The Chemical Bank, 32 New York, 46, a distinction between a foreign administrator and the assignee of one was recognized. In the opinion the following language is used: “The rule is not that our courts do not recognize titles thus acquired. It is simply that a foreign executor or administrator can have no standing in our courts. The plaintiff does not occupy that position. He sues in his own right and for his own interest and represents no one. In my opinion the disability to sue does not attach to the subject of the action, but is confined to the person of the plaintiff.” In the case of Harper v. Butler, 2 Peters, 239, the Supreme Court of the United States decided that: “When an executor having proved the will of his testator in Kentucky had assigned a promissory note due to the estate by a citizen of Mississippi, the suit was well brought in that State by the assignee without a probate of the will there.” In the case of Reynolds v. McMullen, 55 Michigan, 568, it was held by the Supreme Court of Michigan that an administrator appointed in Missouri could not by selling a debt and mortgage against a resident of Michigan confer upon the assignee the right to enforce the same by a suit in the courts of the latter State. ' The opinion of the court by Judge Cooley based the denial of the remedy upon the provisions of the statutes of Michigan with regard to mortgages, which it was held had not been complied with, and upon the pendency of an administration [246] upon the estate of the decedent- at the same time in the State of Michigan. In the course of the opinion it is said: “Where an administrator, in the forum of his appointment, has assigned demands bona notabilia there, it may be correct to hold that his assignee may sue thereon here in his own name.”- Delivered November 18, 1891.