Brockenborough v. Melton

• Decision Date: 19 December 1881
• Docket Number: Case No. 815.
• Citation: 55 Tex. 493
• Parties: N. C. BROCKENBOROUGH AND WIFE v. W. T. MELTON.
• Court: Texas Supreme Court

55 Tex. 493

N. C. BROCKENBOROUGH AND WIFE

v.W. T. MELTON.

Case No. 815.

Supreme Court of Texas.

Dec. 19, 1881.

APPEAL from San Saba. Tried below before the Hon. W. A. Blackburn.

Fisher & Makenson and Terrell & Walker, for appellants.

I. An administration properly granted upon an estate, in the county having jurisdiction, exhausts the jurisdiction of courts of probate upon such estate, and pending such administration another administration begun elsewhere is unauthorized and void. Hart. Dig., arts. 252, 1030 (sec. 36 of probate act of 1840), 1089; Duncan v. Veal, 49 Tex., 603;Withers v. Patterson, 27 Tex., 499; Freeman on Judgments, secs. 118, 121, 125; Grande v. Herrera, 15 Tex., 533.

II. A perfected sale of land in an administration exhausts the jurisdiction of the probate courts over the land sold in that administration, and a second sale in such administration is unauthorized and void. Schmeltz v. Garey, 49 Tex., 59;Grande v. Chaves, 15 Tex., 550;Burdett v. Silsbee, 15 Tex., 604; Lovering v. McKenney, 1 Tex., 531; Wardrup v. Jones, 23 Tex., 489; Hearne v. Camp, 18 Tex., 581; Horan v. Wahrenberger, 9 Tex., 313.

Harwood & Winston, for appellee.

I. Appellants' first proposition may be correct as a legal conclusion, but it is not applicable to this case, nor is the statement of the testimony borne out by the record. The testimony does not show that administration was pending in Galveston county at the time it was begun in Bastrop county. The last act in the Galveston court was of date the 27th of February, 1845. Nothing, as appears from the transcript, was ever done in that court after that date. The petition for letters in the Bastrop court, filed March 7, 1845, alleges that the administratrix intended to resign the administration in Galveston. The presumption is, she did resign at the February court, and that there was proof of that fact before the Bastrop court when it assumed jurisdictional power over the estate. The Bastrop court granted letters of administration to D. F. Brown on the 31st of March, 1845. Pleasants v. Duncan, 47 Tex., 355;Burdett v. Silsbee, 15 Tex., 604. The evidence shows that J. Porter Brown had no fixed place of residence. He died in Galveston in July, 1844, but evidently it cannot be said he had any fixed residence anywhere. He returned from a visit to Tennessee in spring of 1842, and between that time and his death in 1844, two years, he had lived in Bastrop county, in Travis county and in San Jacinto county. This question was adjudicated by the probate court of Bastrop county when it granted the letters to D. F. Brown. The presumption is, it had all the facts before it and passed judgment upon the law and facts at the time its decree was made (Hart. Dig., arts. 1087, 1030), and its judgment cannot be attacked in a collateral action. Giddings v. Steele, 28 Tex., 449; Grande v. Herrera, 15 Tex., 534;Burdett v. Silsbee, 15 Tex., 604;Dancy v. Stricklinge, 15 Tex., 557;Pleasants v. Duncan, 47 Tex., 355;Guilford v. Love, 49 Tex., 715. It will also be seen by reference to the inventory that deceased owned valuable property in Bastrop county, or ““principal effects.” Hart. Dig., art. 1030.

II. The probate court as to matters pertaining to estates of deceased persons is a court of record and of full and complete power and jurisdiction, and its judgments cannot be attacked in a collateral action. Guilford v. Love et als. and authorities there cited; 49 Tex., 715.

It will be presumed that the facts existed which gave the Bastrop court jurisdiction. Giddings v. Steele, 28 Tex., 749; Hart. Dig., art. 1087.

BONNER, ASSOCIATE JUSTICE.

The subject matter of this suit is the north half of block No. 10 of Harwood & Fentress' addition to the town of San Saba, being part of nine hundred and sixty acres of land patented April 9, 1849, to J. Porter Brown, by virtue of the Ozwin Wilcox bounty warrant.

The suit is one of trespass to try title, brought July 8, 1878, by appellant, Sallie F. Brockenborough, joined by her husband, against appellee W. T. Melton. Both parties claim under J. Porter Brown as a common source of title.

Plaintiffs' claim of title is two-fold: First, in right of Mrs. Brockenborough as one of the children and heirs at law of J. Porter Brown, deceased; second, that in the event the administration de bonis non upon his estate, granted by the probate court of Bastrop county to David F. Brown, be held valid, then under deed made by him as such administrator to Joseph Brown, Sr., the grandfather of Mrs. Brockenborough, conveying the interest in the Ozwin Wilcox bounty warrant.

Defendant Melton claims under subsequent deed made by said administrator to J. C. Rogan, conveying the land in controversy, and by mesne conveyances down to himself. The defendant claims the benefit of the statute of limitations, stale demand, possession and improvements in good faith, the validity of the Bastrop county administration, and that plaintiffs are estopped from denying the same, because Mrs. Brockenborough received a large amount of property thereunder as one of the distributees, and by her acts has recognized the validity of the sale under which defendant claims, and has encouraged others to buy and improve lots under the same title, and that before she could recover she should account for the purchase money received by the estate.

The material facts concerning this administration and the two sales thereunder, above referred to, presented by the record, are as follows: The deceased J. Porter Brown, having at one time resided in Texas, and having visited the state of Tennessee in 1841, again returned to Texas in 1842. He then lived for a while in Bastrop county, then in Travis county, then in San Jacinto county, and then in the city of Galveston, at which place he died in July or August, 1844. He left a surviving wife, Jane S. Brown. His surviving children are the plaintiffs, Mrs. Brockenborough and J. Frazer Brown, who does not join in this suit. At the time of his death he was engaged in shipping wood to Galveston. His family were boarding. He had not purchased a residence, but had purchased lumber with a view of building one. After his death, Jane S. Brown, his surviving wife, applied to the probate court of Galveston county for letters of administration upon his estate, which were granted, and she qualified as such August 10, 1844. Neither the application nor order states upon what ground that court had jurisdiction to grant the administration. Subsequently, September 10, 1844, she returned an inventory of a few articles of personal property, amounting to $485; and on February 27, 1845, she returned an additional inventory, consisting of a few other articles of personal property, and three hundred and seventy-five acres of land in San Jacinto county. No order of court is shown approving either of these inventories, and it does not appear that anything whatever was done in this administration after February 27, 1845.

Subsequently, March 7, 1845, David F. Brown, a brother and creditor of the deceased, applied to the probate court of Bastrop county for letters of administration de bonis non, reciting in his application that Mrs. Brown intended to resign the administration granted in Galveston county. Nothing more is shown in regard to that administration, or Mrs. Brown, further than that she died in 1869; whether testate or intestate does not appear. Letters de bonis non were granted to David F. Brown upon his application, and his bond approved May 26, 1845. He had possession, as property of the estate, of a large amount of lands and land certificates, and applied the proceeds of certain sales thereof, made by order of the court, to the indebtedness of the estate, amounting to several thousand dollars. At the December term, 1857, he was discharged, and his final account, showing that the estate was indebted to him $115.91, was approved.

During the pendency of this administration the Ozwin Wilcox bounty warrant, upon which the land in controversy was subsequently patented, was by order of the court sold on the first Tuesday in July, 1846, and bought by Joseph Brown, Sr., for $101. It would appear from certain recitals in the record that this warrant was at that time located. The report of sale made by the administrator states that it was “purchased by Joseph Brown, Sr., for the benefit of J. Porter Brown's children.” This report was approved and deed ordered to be made to the purchaser, which was accordingly done on July 15, 1846. This deed was made to Joseph Brown, Sr., without any recital that the property was bid in for the children, but did recite “That the administrator reserved to himself a locative interest in the said certificates (the Wilcox and another), together with all reasonable and necessary expense in procuring patents for the same, as well as twenty-one dollars in the purchase money of the certificates, which has not been advanced by the said Joseph Brown, Sr.”

August 2, 1856, the administrator made an additional inventory of several tracts of land, and among others the nine hundred and sixty acres, including that in controversy, which had, after the above mentioned sale, been patented. Why this property was again inventoried does not appear, further than from a recital in the inventory that it had been formerly sold by order of the court, and “bought in for the benefit of said estate by Joseph Brown, Sr.” Neither does it appear how the locative interest, which was reserved to the administrator, became reinvested in the estate.

This inventory was sworn to, and was examined and received by the court. The testimony shows that the administrator paid fees and expenses for the location and patent. It is also shown that Joseph Brown, Sr., died in 1864, eighteen years after he had bought the certificate and eight years after the additional inventory and subsequent sale of the land; and it does not appear that he set up title or claim thereto or exercised any acts of...