Brown v. Christie

• Decision Date: 01 January 1863
• Citation: 27 Tex. 73
• Parties: BEN. BROWN v. SAMPSON CHRISTIE.
• Court: Texas Supreme Court

27 Tex. 73

BEN. BROWN

v.SAMPSON CHRISTIE.

Supreme Court of Texas.

1863.

A guardian's sale of land under the act of 1848, which was not made at the time and place prescribed by law, was a nullity, unless confirmed by the probate court.

NOTE.--Tippett v. Mize, 30 Tex., 361.

A guardian's sale of land not made at the time prescribed by law was illegal, and should have been set aside by the probate court; and if improperly confirmed by the probate court, its judgment might be corrected by a direct proceeding instituted for that purpose by any one having an interest in the matter.

But where a sale of land by a guardian, so illegally made, has been confirmed by the probate court, it cannot be collaterally questioned in a suit for the land, brought by a party who in good faith derives his title under the purchaser at such sale.

NOTE.--Alexander v. Maverick, 18 Tex., 179;Giddings v. Steele, 28 Tex., 732;Menifee v. Hamilton, 32 Tex., 495; Davis v. Wells, 37 Tex., 306; Hudson v. Jurnigan, 39 Tex., 579;Kleinecke v Woodward, 42 Tex., 311;Davis v. Touchstone, 45 Tex., 490.

ERROR from Rusk. Tried below before the Hon. C. A. Frazer.

Trespass to try title, brought by the plaintiff in error against the defendant in error, for three hundred and twenty-six acres of land in Rusk county.

The land in controversy was part of the headright of Daniel Clark, deceased, and was sold by B. A. Vansickle, as guardian of his minor heir, under an order of the probate court of the county of Rusk. The deed of Vansickle, the guardian, to the purchaser, James N. Brown, recited that the sale was made on the 25th day of November, 1848. An order of confirmation of the sale was made by the probate court at its June term, 1850. The plaintiff, Ben. Brown, claimed title by mesne conveyances under James N. Brown, the purchaser at the guardian's sale.

The defendant disclaimed as to all the land sued for, except one hundred and fifty acres, to which he set up title in himself by conveyance from the former ward of Vansickle, the heir of Daniel Clark, deceased.

Among various matters set up in the answers, it was alleged that the guardian's sale, under which the title of the plaintiff was derived, was void, for the reason that it was made on the 25th day of November, 1848, and not on the first Tuesday of the month, as required by law, and without an order of the probate court appointing the day of sale.

The other facts appear in the opinion.

There was a verdict for the defendant, judgment accordingly, and a motion for a new trial overruled.

J. C. Robertson & T. W. Jones, for plaintiff in error.

Armstrong & Parsons, for defendant in error.--Guardian's sales must be made on the first Tuesday of the month. (Hartley's Digest, articles 1557 and 1174.)

It will be insisted that the confirmation and approval of the sale by the county court cured all defects. Mere irregularities may be cured in this way, but void sales cannot be rendered valid so as to protect purchasers under them. We think the sale made by Vansickle was void, for two reasons:

1st. Because the order of the sale was made without notice; and upon this point it is believed unnecessary to cite any authority.

2d. Because the sale was not made on the day appointed by law for it to be made. (Howard v. North, 5 Tex., 290;Peters v. Caton, 6 Tex., 554.)

In the case of Howard v. North, this court say, when speaking of the day upon which the sale was made, “If this be not the first Tuesday of that month, the fact should have been proved by the plaintiffs; and if established it would have invalidated the title of the purchaser.” Again, the court say, “But where the time and place of a public sale are prescribed, the sheriff has no authority to sell at any other time or place, and, should he do so, his acts are not merely irregular, but void, and can confer no title.” (5 Tex., 310.)

The language of the court in the case of Peters v. Caton, 6 Tex., page 558, is to the same effect as that in Howard v. North, except that “““ administratrix” is used instead of “ sheriff.”

If a sale be void, can the confirmation and approval of it by the county court make it valid?

MOORE, J.

The charge of the court below to the jury required them to find for the defendant unless it clearly appeared from the evidence that the sale by Vansickle, as guardian, was made on the first Tuesday of the month. If the instruction given by the learned judge who presided upon the trial of this cause was in this particular correct, we should, as there is testimony to support the verdict, feel constrained to affirm the judgment, although there is, we think, a strong preponderance of testimony against their finding. We are of the opinion, however, that the charge of the court was, with reference to the facts of this case, erroneous.

In the case of Howard v. North, 5 Tex., 290, this court held that a sale of land under execution by the sheriff, unless on the first Tuesday in the month, is an absolute nullity. And in the subsequent case of Peters v. Caton, 6 Tex., 554, Chief Justice Hemphill, in delivering the opinion of the court, says, “the law fixing the time and place of a sale, not to be modified or changed except by the order of the court, is as well known to the purchaser as to the administrator; and when a change is made,...