Another v. Wife
| Decision Date | 31 December 1849 |
| Citation | 4 Tex. 431 |
| Parties | LYNCH AND ANOTHER v. BAXTER AND WIFE, ADM'X. |
| Court | Texas Supreme Court |
An administrator's sale is a judicial sale and operates in rem. In such cases it is a general rule that caveat emptor applies, and the purchaser takes his purchase without warranty, express or implied; and if the administrator gives the purchaser a bond for a warranty title, it is not in his capacity as administrator. (Note 93.)
Quere whether the administrator would be personally bound in such a case.
A vendee cannot resist the payment of the purchase-money, on the ground of defect of title in the vendor, while he retains the title bond and continues in possession of the land.
Where the vendee gives his note for the payment of the purchase-money, and goes into possession, there being no further contract in writing, he cannot avoid the payment, notwithstanding the statute of frauds, if the vendor be able and willing to make title.
Where heirs are all of age, they can, by consent, partition the inheritance among themselves without the aid of the Probate Court; and if one be under age at the time, but acquiesce after coming of age, he will be bound.
A verbal partition of land, perfected by delivery of possession, was as valid under the Mexican law as if evidenced by writing.
A bond for title and possession of the land, title or no title, are a sufficient consideration for a promise to pay money, where the defendant does not offer to surrender the bond and possession of the land.
The proceedings of the Probate Court cannot be collaterally impeached for an omission to disclose on its records an observance of everything enjoined by statute, upon the ground that it is a court of limited jurisdiction. (Note 94.)
It is not necessary that the record should show a necessity for a sale of real estate, although a sale be ordered and made without any necessity existing at the time the order was made for such sale; nevertheless, that order is conclusive until it be set aside by proceedings having that object directly in view; and the purchaser, having purchased without fraud or collusion with the administrator, will be protected by the sale, if the decree under which it was made be the decree of a court of competent jurisdiction.
The Probate Court, in the settlement of succession, proceeds in rem; and in a collateral proceeding the only objection which can be made to its judgments or orders is the objection for the want of jurisdiction.
Quere whether or not it is necessary for the record of the Probate Court, on appeal, to disclose an observance of everything enjoined by statute.
A party who produces a transcript of part only of the proceedings of the Probate Court in the settlement of a succession cannot object to those proceedings because the record does not disclose that certain things were not done which ought to have been done; for if he had produced a copy of all the proceedings, it would probably have appeared that those things were done.
The twenty-ninth section of the act of 1849, regulating the duties of Probate Courts and the settlement of successions, did not require that the perishable and personal property other than slaves should be sold before obtaining an order for the sale of slaves or real estate; but it was the duty of the administrator, as soon as he ascertained, by sale or otherwise, that the personal property was not sufficient to pay the debts and the expenses of the administration, to apply for an order for the sale of slaves or real estate; and if the personal property had not been sold, it was competent for the court to include in the same order directions for the sale of the personal property and as much of the real estate or slaves as would be necessary to pay the debts and expenses of administration.
Appeal from Washington county. The appellees sued the appellants on a note of hand, dated October 5, 1841, due twelve mouths after its date, payable to Walker C. Cooper, administrator of James Hensley, deceased. The petition alleged that the said note was given for the purchase-money of a tract of land sold by the said Cooper, as administrator of the said Hensley, deceased, at an administration sale, as the property of the succession of the said Hensley, deceased, on the said 5th day of October, 1841, and that the said Lynch then became the purchaser thereof. The death of Cooper, the first administrator, was suggested, and the grant of the administration de bonis non to Mrs. Baxter, and her intermarriage with Baxter. They prayed process and judgment, &c. The defendants first filed an answer denying the allegations in the petition. They subsequently amended and pleaded specially, admitting the note sued on was given for the land, &c., and making a bond for title given by Cooper, former administrator, a part of their plea, and alleging that title, though often demanded of the said Cooper and of the said plaintiffs, had not been made; that title cannot be made by them, because the title is in the heirs of the said James Hensley, deceased, and not in the administratrix; and that the consideration for which the note sued on was given has failed. And in a second amendment of their answer they said the land was not the property of said James Hensley, deceased, but was the undivided estate of J. H. Hensley, and belonged to his heirs, consisting of children, &c., and the children of the said James Hensley, deceased, the said Cooper's intestate; and therefore the said Cooper could not sell the said land.
Johnson Hensley, a witness for the defendants, swore that there was no such person as J. H. Hensley; that the land in question was part of the headright of Harmon Hensley, father of plaintiffs' intestate and of witness; and that the said Harmon Hensley died some time early in the year 1834, leaving several heirs, all of age, except one, Margaret, about fifteen years of age; that in November of the same year the children of said Harmon Hensley agreed to divide the said land, by metes and bounds, in equal parts. Witness could not say whether the partition was in writing. The best lot was given to the said minor Margaret. She married in 1835, and she and her husband sold it to plaintiffs' intestate. The said Margaret and her husband and all the heirs, since 1834, have acquiesced in the partition and have used and enjoyed the parts allotted to them. The defendants then offered in evidence a copy of the petition of Cooper, administrator of Hensley, praying an order of sale, and the decree of the probate judge rendered on the petition. The petition represents the perishable property as worth about $500, and that the debts already presented and allowed amount to $1,200, besides the expenses of the administration, and prays an order of sale of the perishable property, and as much of the real estate as shall be of value sufficient to pay the debts and expenses of administration. The petition is sworn to by the administration. The decree of the probate judge is made in conformity with the prayer of the administrator. There was a verdict and a new trial; the case was afterwards submitted to the judge, the parties waiving a jury trial; judgment for the plaintiffs; from which the defendants appealed.
The errors relied on were--
1st. That the land did not belong to the estate of the administratrix's intestate, and that the plaintiffs, the administratrix, could not make title.
2d. That the decree of the probate judge ordering the sale was a nullity and absolutely void, and that consequently Cooper, the administrator, had no right to sell the land under such void decree.
3d. That the covenant in the bond and the note sued on being dependent on each other, the action could not lie.
Webb, for appellant.
I. Upon the first point the testimony shows that the land was a part of the headright league of Harmon Hensley, and that after his death his heirs, of whom James Hensley was one, verbally agreed to a partition between themselves, one of them being a minor; that they made the partition according to the agreement, and each one of the heirs claimed in severalty the parts allotted to him; and that the part which fell to James Hensley was the land sold by his administrator, Cooper, to Lynch, for which the note sued on was given. This partition, it is insisted, was illegal, and the whole of the heirs remained as well after as before it, joint tenants in each and every parcel of the league of land; and consequently, if the administrator has conveyed the land to Lynch, the other heirs might sue for and recover from him their portion of it. (4 vol. Laws, p. 122. secs. 38, 39, 40; 7 Mass. R., 488;12 Mass. R., 520.)
II. The judgment of the Court of Probate of Austin county, under which the land was sold, was in evidence before the court in Washington in this case, and it shows upon its face that the Probate Court had no jurisdiction over the subject-matter at the time the order to sell the land was made. The judgment, therefore, was coram non judice. A Probate Court has no authority to order a sale of real estate except it be for the payment of debts, in default of personal estate, or for distribution, and not even for the payment of debts, until it shall be shown that the personal estate is exhausted. (4 Laws, p. 119, sec. 29.) The petition to the Probate Court by the administrator for an order to sell the land of Hensley shows that the personal estate had not been exhausted or applied to the payment of the debts. The court therefore had no jurisdiction to entertain it and the judgment rendered upon it was coram non judice, and void. The Court of Probate being a...
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