Berry v. Young

• Decision Date: 01 January 1855
• Parties: JOHN BERRY v. JAMES YOUNG.
• Court: Texas Supreme Court

15 Tex. 369

JOHN BERRY

v.JAMES YOUNG.

Supreme Court of Texas.

1855.

Where one of two minor brothers died, and the guardian of the survivor, who was sole heir to the deceased, obtained an order of sale and sold property to pay debts of the deceased, it was held on objection, that administration should have been opened on the estate of the deceased, etc., that it would have been a useless expense; and the sale was sustained.

Where an order for the sale of minor's property required five hundred acres to be surveyed out of a certain tract, to commence at the river, on the lower line of the league and run out for quantity, in the form of a square, so as not to interfere with the farm at present occupied by Mr. Side, and to be then advertised and sold; and in pursuance of said order the guardian caused a square of five hundred acres to be surveyed on the lower line of the league, commencing about a mile and a half from the river; and it was proved that a square of five hundred acres could not have been obtained, commencing at the river, without interfering with the farm occupied by Mr. Side; and the sale was regularly confirmed, the court, in an action for the recovery of the land brought by the minor, after coming of age, against the purchaser, refused to pronounce the sale invalid.

See this case as to fraud in probate sales.

Error from Fayette. John F. Berry (the father of plaintiff) died in Colorado county, leaving a widow and two children, James and John. He also left a large estate, amongst which was a league of land situated in Fayette county, originally granted to said Berry. After the death of Berry, one Leander Beason obtained letters of guardianship of the persons and property of the two minors, James and John; subsequent to which the widow died, and soon afterwards James died also, leaving John (the plaintiff) the only surviving member of the family. In the year 1850 (after the death of James), the guardian, Beason, petitioned the county court of Colorado county for the sale of a part of the league of land before mentioned, to pay the debts of his deceased ward, James Berry. The petition was granted and the order made authorizing the sale of five hundred acres off of said league; the survey to begin “at the lower line of said Berry league and run out from the river sufficiently far to obtain the necessary number of acres as near as may be, in a square figure, so as not to interfere with the farm at present occupied by Mr. Side.”

The order required the survey to be first made and the land to be advertised and sold.

The return of the sale was to the effect that the guardian had, in pursuance of the order, sold “five hundred acres of land granted to John F. Berry, deceased, by the government of Mexico, situated and being in Fayette county, on the east side of the Colorado river, and about a mile and a half north of said river, at which sale James Young, of Fayette county, became the purchaser, he being the highest and best bidder, having bid the sum of $380.” Sale confirmed 29th July, 1850, and order for deed to Young.

It was proved that the five hundred acres could not have been taken in the form of a square, to commence at the river, without interfering with Side's farm: and that the land sold was surveyed in the form of a square, commencing about a mile and a half from the river, on the lower line of the league.

This suit was brought in the district court, by the appellant, against Young, to recover the land and cancel the deed from Beason. The petition alleged illegality and fraud. The answer alleged good faith and the payment of $420 to the guardian, which the latter required, and that the same was paid for plaintiff's use; alleged valuable improvements, etc. The only evidence...