Ash v. Barnsdall Oil Co., 9662.

• Decision Date: 29 March 1941
• Docket Number: No. 9662.,9662.
• Citation: 118 F.2d 699
• Parties: ASH et al. v. BARNSDALL OIL CO.
• Court: U.S. Court of Appeals — Fifth Circuit

118 F.2d 699 (1941)

ASH et al. v.BARNSDALL OIL CO.

No. 9662.

Circuit Court of Appeals, Fifth Circuit.

March 3, 1941.

As Modified on Denial of Rehearing March 29, 1941.

Pritchett Harvey and A. F. Sundermeyer, both of Houston, Tex., and J. B. Lewright and Grady Barrett, both of San Antonio, Tex., for appellants.

Felix A. Raymer, E. E. Townes, R. E. Seagler, W. J. Howard, and W. Noble Carl, all of Houston, Tex., David B. Trammell, of Fort Worth, Tex., and B. D. Tarlton, of Corpus Christi, Tex., for appellees.

Before FOSTER, SIBLEY, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

This is a suit to recover a two-thirds interest in certain real estate in Nueces County, Texas, and for an accounting and recovery for the value of oil taken therefrom.Our decision turns upon the validity of an administrator's deed which was executed on March 1, 1860.It is admitted that, if the deed is good and conveyed title to the land, the judgment of the court below should be affirmed.

The land belonged to John Peter Schatzell, who died October 23, 1854.On November 4, 1854, three men were appointed permanent administrators of the estate.In July, 1855, James W. Zacharie applied to probate what purported to be a holographic will left by Schatzell.The application was contested by the heirs, but the will was probated on January 5, 1856.Samuel W. Fullerton, Zacharie's attorney in fact, was appointed administrator pro tempore pending the contest, the other administrators having been suspended.When no appeal from the order probating the will had been filed within the statutory time therefor, Fullerton was appointed and duly qualified as administrator cum testamento annexo.On March 1, 1856, certiorari proceedings were filed in the District Court of Nueces County seeking a review of the order of the probate court which overruled the contest upon and probated the will.Two years later this proceeding was removed to another county, and ten years later it was dismissed.

On April 26, 1856, in view of the certiorari proceedings, Fullerton was reappointed administrator pro tempore during the pendency of the contest, and he was ordered and empowered to do whatever might be necessary to preserve the estate from loss and waste.By successive orders of the probate court, Fullerton's powers and duties were extended and increased.On October 31, 1859, he applied to the court for authority to sell some of the land of the estate to pay expenses of administration and debts, stating the necessity for the order.The sale was authorized by the court on November 2, 1859, and was completed by the delivery to Robert Mott of the administrator's deed dated March 1, 1860.The court approved the sale, and a note for $3100 was taken in payment.

The judge of the probate court owed $600 to the estate at the time he appointed Fullerton administrator pro tempore.The court file of the administration proceedings contained no record of the payment of the $3,100 owed for the purchase of the land; the third report dealing therewith noted that it had been placed with attorneys for collection and was reported to have been paid, although nothing had been turned over to the administrator.This administrator's trator's deed is the common source of title for all of these appellees.

Appellants attack the validity of the deed upon four principal grounds.They deny the power and the authority of Fullerton, as an administrator pro tem under the Texas law, to execute a valid deed to estate property.They claim that the debt owed by the probate judge disqualified him from acting in the case, and nullified all proceedings in which he was concerned; that, during the pendency of the certiorari proceedings, the probate court was powerless to make a valid sale; and that the purchase-money note was never paid.

The probate judge was the debtor of the estate, not its creditor.No administrative proceedings were had which could or did affect his interest in any way.His debt was for a sum certain, and his participation did not result in an increase or diminution of the obligation, nor defer or mitigate the burden of payment.His debtor relationship did not disqualify the judge from acting in the case.¹

Fullerton had the power and authority to make a valid conveyance of said realty.The only qualification imposed by the statutes of Texas upon the powers of an administrator pro tem limits him to such powers as "the circumstances of the case may require."²Fullerton's petition to the court for authority to sell the real estate set up the propriety and necessity therefor.This satisfied the requirements of the statute conditioning the existence of the power, and the authority was vested in Fullerton by the order of the court directing that the sale be made.We are not convinced by the argument that the powers of a temporary administrator must be fixed by the order of appointment, and cannot be increased, changed, or diminished thereafter.The range of duties which the developing exigencies of a particular case may require a temporary administrator to perform can rarely be accurately foreseen at the time of his appointment.No such limitation is imposed by reason, and none is indicated by the language of the Texas statutes of 1848 in force at the time.

There is nothing contrary to this in the Texas decisions relied upon by appellants.Those decisions³ hold that the statute under which temporary administrators are appointed must be strictly construed, and that the powers of a temporary administrator shall not be extended beyond those clearly intended to be conferred by the court appointing them.We find no case forbidding the judge to increase the powers conferred by an order subsequent to the original appointment; indeed, such a holding would avail nothing so long as the court has original jurisdiction to confer the power,⁴ for there is nothing to prevent the resignation and reappointment of the same administrator with added powers.

The certiorari proceedings were pending in court for approximately ten years; it was within this time that the land was sold.Whether or not the probate court had jurisdiction to authorize the sale of the land during this time depends upon the effect given to certiorari proceedings by Texas law.The precise question is whether or not a certiorari proceeding, which did not remove the entire probate cause to the higher court, effected a suspension of the power of the probate court to sell property of the estate, and rendered void any sale so made.Serious questions are raised as to whether the ultimate dismissal of this certiorari proceeding reinstated the probate of the will or left the parties out of court, and whether the bond given effected a proper supersedeas to stay probate proceedings.As to these, we make no decision, as we think the...