Soye v. McCallister

• Decision Date: 01 January 1856
• Citation: 18 Tex. 80
• Parties: ROWLAND SOYE AND OTHERS v. JOHN M. MCCALLISTER AND OTHERS.
• Court: Texas Supreme Court

18 Tex. 80

ROWLAND SOYE AND OTHERS

v.JOHN M. MCCALLISTER AND OTHERS.

Supreme Court of Texas.

1856.

Where a deed recited the parties as A of the first part and B, C, D and E, “heirs and legal representatives of F, deceased,” of the second part, and purported “in consideration of five hundred dollars paid by the party of the second part to the party of the first, the receipt whereof is hereby acknowledged,” to convey from the party of the first part to the party of the second part a certain league and labor of land, with general warranty, the court said that prima facie it must be taken that the consideration moved from the ancestor F, and that the land was assets in the hands of his administrator. But it does not rest alone. Post, 100; 20 Tex. 565.

It is unnecessary to discuss the question whether the agreement (dated in 1833, for the sale of a concession for a league and labor of land, the title for which had not been extended) was, to all intents and purposes, null; or was only in so far inoperative and ineffectual, as that it could not be enforced, unless it was validated by the grantee, after the removal of the legal impediment; or unless there were supervening equities, which had the effect to make good the title in the purchaser. Whatever theoretical opinion may be entertained of the question it cannot be denied that, practically, the latter view of it has been maintained. But though it be utterly void, etc. 1 Tex. 748;9 Tex. 385;14 Tex. 545;21 Tex. 174;27 Tex. 393.

Where a contract to convey his concession for a league and labor to B, in 1833, before the extension of the title thereon, for the price of eighty dollars, the receipt of which was acknowledged, and B having died, A, in 1838, conveyed the said land to C, D, E and F, “heirs and legal representatives of B,” the conveyance purporting to be in consideration of five hundred dollars paid by C, D, E and F to A, and warranting the land to them; and C, D, E and F were at the time minors of tender age, under the protection of the administrator of B; and said land had been inventoried as the property of the estate of B before the conveyance to C, D, E and F, and was sold at administrator's sale as the property of said estate in 1840; and C, D, E and F first brought suit to recover said land in right of their ancestor B, which suit they dismissed, and sued to recover the same in right of the conveyance from A to them in 1838; held, that if it were admitted that the agreement between A and B was null and void, as being in violation of law; yet, there being nothing in the evidence to countervail the prima facie presumption arising from the face of the deed from A to C, D, E and F, that the conveyance was virtually and beneficially for the estate, but the contrary, said deed vested the title in the estate of B and not in C, D, E and F, in their own right.

The principal objection to the sale in the present case is, that it does not appear that the term of administration was continued down to the period of the sale. The administrator, however, continued to act under the sanction of the probate court; and there is more than the usual apparent regularity in the proceedings, in other respects. That the absence in the record, of any evidence of the extension by the court of the term of administration, does not invalidate the title of the purchaser, has been fully settled in the cases referred to. 12 Tex. 440;13 Tex. 309;15 Tex. 557, 604;28 Tex. 732.

Where husband and wife both died about the same time, and it did not appear which died first, and administration was taken out upon the estate of the husband, and land was sold, and it did not appear that the debts for which it was sold were not community debts, it was held that the heirs of the wife could not claim that the wife's interest in the property, presumed to be community property, did not pass by the sale; and the court said there was no necessity for two administrations upon the same property, to pay debts for which it must have been equally liable, in the hands of the administrator of either or both of the decedents. Contra,15 Tex. 143, 369.

Where a succession was opened in 1834 by the appointment of A as curator, and A next appeared as administrator in 1837, and acted and was recognized as such by the probate court, until 1840, it was held that the court properly refused to instruct the jury, that if five years elapsed from the original appointment of A as administrator in 1834, before the order of sale was granted, the court had no power to continue him in his functions, and his acts after five years had elapsed from the original appointment, in selling the land claimed, were null and void. 4 Tex. 431;12 Tex. 440;15 Tex. 557;28 Tex. 732.

In a controversy respecting the title to land sold at administrator's sale, it is not proper to instruct the jury, that if the administrator had in his hands sufficient assets to pay all the debts of the estate, there was no necessity for the sale, and the court was without power to grant an order of sale, and that a purchaser would be presumed to have full notice of the want of such power.

See this case for an example of where the court, having given in charge to the jury the law applicable to the allegations and evidence, refused to give other instructions at the request of a party.

A conveyance to the heirs of a deceased person prima facie enures to the benefit of the estate of such deceased person, and the property thereby conveyed is subject to sale, etc., same as other property of the estate, without any conveyance from the heirs or proceeding in court to divest them of the title; such prima facia presumption may be rebutted by showing that the consideration moved from the heirs and not from the ancestor, or that the conveyance was a gift or bounty, but not by showing that the conveyance was made in pursuance of, or by reason of, a previous illegal contract between the grantor and the ancestor of the grantees, in which the ancestor paid the price of the land.

Appeal from Bexar. Tried below before the Hon. Thomas J. Devine.

Action of trespass to try title, commenced October 14th, 1853, by Rowland Soye, Elizabeth Soye, and Ellen Soye, a minor, against John M. McCallister, John S. McClellan, John James, Andrew Spira, James Newton, James R. Sweet, Claiborne Rector and Edward Gallagher. The defendants claimed different parts of the league and labor of land sued for, under a sale by the administrator of John Soye, the ancestor of the plaintiffs; and the plaintiffs prayed a recovery of the land and a cancellation of the administrator's deed, which they alleged was a cloud upon their title.

The plaintiffs proved an original grant from the state of Coahuila and Texas, of one league and labor of land, to Juan Delgado, on the west bank of the Cibolo, dated September 10th, 1833; a deed dated October 6th, 1838, from Juan Delgado, of the first part, to John Soye, Rowland Soye, Elizabeth Soye, and Ellen Soye, “heirs and legal representatives of John Soye, deceased, of the second part,” for said league and labor of land, expressed to be “for and in consideration of the sum of five hundred dollars, paid by the party of the second part to the party of the first part, the receipt whereof is hereby acknowledged,” with general warranty. Recorded same day. Proof that John Soye, brother of plaintiffs, died in 1842 without issue. Here the plaintiffs rested.

Defendants read in evidence the petition in another suit, by plaintiffs against J. M. McCallister and others, commenced April 30th, 1853. It alleged that their father, John Soye, of said county and state, departed this life many years ago, leaving your petitioners, and John Soye, his sole heirs and legal representatives; that the said John Soye has since departed this life without issue; that at the time of the death of said John Soye, he owned one league and labor of land, lying, being and situated in said county of Bexar, on the east side of the Cibolo, just below the Gonzales road, originally granted to Juan Delgado, and conveyed by said Delgado to the said John Soye, and afterwards also conveyed to your petitioners, etc.

The defendants then read in evidence the proceedings of the probate court of Bexar county in the matter of the succession of John Soye, the plaintiffs excepting to the reading of the same, so far as they showed any action of the administrator at any time after the lapse of one year from and after the 20th day of December, 1836. First: bond of John McMullen as administrator of John Soye, dated and filed August 29th, 1837; it contained a recital as follows: ““who was previously appointed administrator,” etc.; petition of administrator, August 30th, 1837, for continuance of the term of administration; August term, 1837, petition of a creditor for order for payment of a debt; order made; October 30th, 1837, citation for John McMullen, administrator of the estate of John Soye, to appear same day and await the order of the court; April 12th, 1838, citation to John McMullen, administrator, etc., that he, the said administrator, be and appear at the next term of the probate court, to be holden at the court house, in the city of San Antonio, on the last Monday of April, 1838 (being the 30th day of the present month), then and there to make settlement of the said administration and that the necessary division among the heirs be made, so that the guardian may receive the same in due form; recitation in the citation as follows: Order of the honorable the probate court in and for the county of Bexar, at the January term, 1838, continued at February term, and same at March term, 1838. May 21st, 1838, citation to same, reciting a peremptory order of the last term, to settle his account at the next, and also to pay claims; April 31st, 1840, citation to same to settle his account, “so that the same (the estate), may be finally closed, and the estate, property, money, etc., delivered to the guardians of...