2. — Cases Followed. Fessenden v. Barrett, 9 Tex. 475; Willis v. Stroud, 67 Tex. 516 [ 67 Tex. 516]; Millican v. Ware, 84 Tex. 308; Low v. Felton, 84 Tex. 378; Wilcox v. National Bank, 93 Tex. 322; Stevens v. Stone, 94 Tex. 415 [ 94 Tex. 415], followed. (Pp. 652, 653.)
— The jurisdiction of the County Court over the estate, and right to its possession, are exclusive. Constitution, art. 5, sec. 16; Rev. Stats., art. 3206; Messner v. Giddings, 65 Tex. 301; Franks v. Chapman, 61 Tex. 576; Timmins v. Bonner Long, 58 Tex. 557; Murchison v. White, 54 Tex. 83 [ 54 Tex. 83]; Low v. Felton, 84 Tex. 378; Wilkinson v. McCart, 116 S.W. 400; Buchner v. Wait, 137 S.W. 383; McCorkle v. McCorkle, 25 Texas Civ. App. 149[ 25 Tex. Civ. App. 149], 60 S.W. 434; Dulaney v. Walsh, 37 S.W. 615; Scott v. Royston (Mo.), 123 S.W. 454; Allen v. Von Rosenberg, 16 S.W. 1096; Kennedy v. Pearson, 109 S.W. 280. As against such exclusive jurisdiction, that of a court of equity which has taken into its hands the subject matter and possession of the property by a receiver does not apply.
But in the case of Patterson v. Allen, 50 Tex. 26, Judge Gould held, that where four years had not elapsed, and where there was only one debt against the estate, and no necessity for administration, and the heirs had divided the property among themselves, the creditor could bring suit directly against them, and that each heir was liable to the extent of the estate received by him. This doctrine has been so often maintained in our courts since, that it may be considered as settled in this State. Low v. Felton, 84 Tex. 378 [ 84 Tex. 378]; Webster v. Willis, 56 Tex. 468 [ 56 Tex. 468]; Schmidtke v. Miller, 71 Tex. 103 [ 71 Tex. 103]; Campbell v. Henderson, 50 Tex. 601 [ 50 Tex. 601]; Mays v. Jones, 62 Tex. 365. Upon the question raised by appellees, that no such suit can be maintained against a guardian unless the claim is first verified and presented for allowance, Judge Stayton, in a recent opinion, has held that the law does not require such presentation.
That limitation did not begin to run against any of the five notes until the last one became due: Citizens' Nat'l Bank of Hillsboro v. Graham, 275 S.W. 997; Vernon-Sayles Statutes of 1914, Article 5695; State Nat'l Bank of Ft. Worth v. Stratton-White Co., 50 S.W. 631; Benson v. Phillips, 87 Tex. 578, 29 S.W. 1061; Lee v. Lewis, 287 S.W. 115, 117; Ward v. Scarborough, 236 S.W. 234; Watson v. First Nat'l Bank of Coleman, 285 S.W. 1050. That death of Edward R. Holden suspended limitation one year: Low v. Felton, 84 Tex. 378, 382, 19 S.W. 693; Carter v. Hussey, 46 S.W. 270; Groesbeck v. Crow, 91 Tex. 74, 40 S.W. 1028; W. J. Lemp Brewing Co. v. La Rose, 50 S.W. 460; Cyc. 25, p. 1278. It was not necessary for appellee to prove that no executor or administrator was appointed or qualified, but it devolved upon appellant to prove that there was an administrator or executor appointed to prevent the suspension of the statute.
. . . a distributee would not "be liable beyond his just proportion, according to the estate he may have received in the distribution." To the same effect is Low v. Felton, 84 Tex. 378, 19 S.W. 693 (1892). This principle was further articulated in Perry National Bank of Hamilton v. Norwood, 22 S.W.2d 1100 (Tex.Civ.App. Waco 1930, writ dism'd) where court said:
— The court having jurisdiction of the subject matter of the suit and of the persons of at least two of the original joint defendants, acquired jurisdiction of all necessary or proper parties to the suit (personally served with process) for a full and complete adjudication upon all the issues in the case. Rev. Stats., art. 1198, sec. 4; Low v. Felton, 84 Tex. 380; Schmidtke v. Miller, 71 Tex. 107; Eckford v. Knox, 67 Tex. 205 [ 67 Tex. 205]; Garrett v. Gaines, 6 Tex. 446; Templeman v. Gresham, 61 Tex. 53; Willis v. Gordon, 22 Tex. 243; Bourke v. Vanderlip, 22 Tex. 221; Witt v. Kauffman, 25 Texas Supp., 384; State v. Lewellyn, 25 Tex. 797; McCampbell v. Henderson, 50 Tex. 611. G.G. Kelley and Hutcheson, Campbell Sears, for appellees.
That they have the right to appeal from the judgment, there seems to be but little question (Railway v. Railway, 68 Tex. 98), and we have also reached the conclusion, that in this case they should be heard to complain of the action of the court in quashing their attachment. It seems that in the absence of the attachment lien plaintiffs' cause of action against the heirs of Burbridge, upon the death of their ancestor, would have been in personam to recover the value of the property they had received (Mayes v. Jones, 62 Tex. 365 [ 62 Tex. 365]; Low, Administrator, v. Felton, 84 Tex. 378 [ 84 Tex. 378]); and as all the parties were nonresidents, and the defendants had not appeared, the suit could not have been longer maintained without the issuance of a new attachment based upon such value. York v. The State, 73 Tex. 651 [ 73 Tex. 651].
The estate of John Bouvet is liable on the note in suit, and it was not barred by the statute of limitation. Rev. Stats., art. 3369; Low v. Felton, 84 Tex. 382; Groesbeck v. Crow, 91 Tex. 74 [ 91 Tex. 74]. John Bouvet was a principal contractor on the note towards appellant, even though his relationship to Felix Bouvet may be that of surety for him.
The limitation is express where execution has not issued within twelve months; but where execution has so issued, no period of limitation is expressly prescribed. But no reason is seen why the Legislature should prescribe a limitation in the one case and not in the other; and therefore it has been repeatedly held that where execution has been sued out within twelve months from the date of a judgment, an action upon it will not be barred until the lapse of ten years from the date of the last execution or the last act of diligence. Fessenden v. Barrett, 9 Tex. 475 [ 9 Tex. 475]; Willis v. Stroud, 67 Tex. 516; Low v. Felton, 84 Tex. 378. But when we come to apply the rule to the facts of this case, we encounter a more difficult question. Can the issue and levy of the execution in 1889 be deemed an act of diligence? This depends, as we think, upon the further question, whether, at the time that writ was sued out, the judgment was dormant.
So, too, when Mrs. Swoope and Mrs. Darrow paid or satisfied the judgment in 1881 and 1894, respectively, the claim against the estate of Peters was barred by the statute of limitations of ten years of both Alabama and Texas, because the injunction suit in Alabama was never revived against his legal representative, successor, or party in interest, nor was any independent action ever instituted against them either on the judgment or on the injunction bond. If measured by the law of this State and not the statute of Alabama, the same conclusion follows, inasmuch as it is not shown that there was no administration on the estate of Peters or need of any or that it was insolvent. Solomon v. Skinner, 82 Tex. 345; Low v. Felton, 84 Tex. 385 [ 84 Tex. 385]. Being under no legal obligation to pay the void judgment rendered against Peters after his death, and, besides, any claim against his estate on the bond or judgment being barred by limitation as above shown, the voluntary payment made by Mrs. Swoope and Mrs. Darrow was at their peril, and they can not assert or enforce a lien upon the land in this State. Oury v. Saunders, 13 S.W. Rep., 1030; Fievel v. Zuber, 67 Tex. 275; Sheldon on Subrogation, sec. 110, note 5; Id., sec. 176, note 2; Printed argument for appellants, page 7; 7 Am. and Eng. Enc. of Law, 2 ed., 349, note 5.