Burgess v. Millican

• Decision Date: 01 January 1878
• Citation: 50 Tex. 397
• Parties: A. S. BURGESS v. SAMUEL H. MILLICAN.
• Court: Texas Supreme Court

50 Tex. 397

A. S. BURGESS

v.SAMUEL H. MILLICAN.

Supreme Court of Texas.

1878.

APPEAL from Parker. Tried below before the Hon. J. A. Carroll.

April 9, 1878, A. S. Burgess brought suit in the District Court of Parker county against Samuel H. Millican. The petition gave a history of the transaction out of which the litigation arose, and it was alleged that in 1869 one Jane Collie died, in Parker county, having at her death a homestead or preemption of one hundred and sixty acres of land, known as “the Jane Collie preëmption.'DD' She left four children, then minors,--W. F., John W., A. J., and Libitha A. Collie; that shortly after their mother's death these children were taken by their uncle to Arkansas, where they remained; she left about $1,000 in value of personal property, and was owing but a very small sum; her estate was first administered upon by one Franklin, who was succeeded in the administration by A. J. Bell; that at the July Term of the Probate Court of Parker county, 1869, Bell having filed his final account, the court made a final settlement with him; the settlement account showed that all the debts of the estate had been paid, and that there remained $70 and the one hundred and sixty acres of land; no heirs appearing to claim the estate, the Probate Court at the same term made an order, on its own motion, directing that the money be paid to the State treasurer and ordering the sale of the land; that although a newspaper was published at the time in Parker county, yet no notice was published therein of said account; that under this order Bell sold the land to defendant Millican, on a credit of twelve months, for $301, making on September 27, 1869, a deed to Millican, and at the same time taking a note and mortgage from Millican to secure said purchase-money; that the purchaser was the acting clerk of the Probate Court, and knew of all the facts affecting the title to said land as affected by said sale; that Millican refused at maturity to pay for the land, and had not paid any part thereof.

Plaintiff claimed that he had bought of said heirs their entire estate as heirs of their mother.

It was alleged that Bell ceased to act as administrator in 1870; that plaintiff had taken possession of the land and had made valuable improvements thereon; that Millican never had been in actual possession of the land; that defendant Millican was asserting claim to the land, and that the claim was a cloud, &c. Prayer was first to remove the cloud made by the purchase by Millican; (plaintiff bringing into court the note and mortgage for cancellation;) and, second, in event of refusal of first prayer, that he have judgment for amount of the note and foreclosure of the mortgage.

The court sustained exceptions and demurrer to the petition. The plaintiff declining to amend, judgment final for defendant was rendered, and plaintiff appealed.

A. J. Hood, for appellant.

I. The court had no power or jurisdiction to make final settlement with the administrator Bell, and order sale of estate property of any sort, the debts having all been paid, until the heirs had first been cited by publication in a newspaper for twenty days. (Paschal's Dig., art. 1350; Marks v. Hill, 46 Tex., 345;27 Tex., 495.)

II. Even if publication of notice to the heirs for twenty days had been made before the making of said final settlement and order for sale of the land, the court had no jurisdiction or power, on its own motion, to order a sale of the land, the debts being all paid. The court would not, in any event, have had jurisdiction to order sale of other than personal property. (Paschal's Dig., art. 1351.)

III. But if the land was legally sold, the note of $301 given by defendant Millican and the mortgage and the deed constituted but one instrument. (Dunlap's Adm'r v. Wright, 11 Tex., 597;15 Tex., 305;6 Tex., 174.)

By the terms and stipulations of the contract, (to wit, note, mortgage, and deed,) if valid, after the sale the actual better title to the land remained in the heirs of Jane Collie until their sale to plaintiff.

Defendant made and delivered the mortgage and the note. The mortgage and deed showed that defendant Millican had not paid for the land. (Baker v. Clepper, 26 Tex., 634;11 Tex., 597;18 Tex., 377;15 Tex., 305;6 Tex., 174;Estes v. Browning, 11 Tex., 237.)

IV. In all cases of sale of land, whether the buyer receives a deed absolute or a mere bond for title--let the terms of sale be what they may--the title as between the vendee and the vendor in possession, or the assignees of the vendor in possession, is not in the vendee until he pays the purchasemoney. (Baker v. Ramey, 27 Tex., 52;16 Tex., 472;6 Tex., 174;11 Tex., 237.)

V. The plaintiff being in possession of the land and defendant Millican being out of possession, defendant Millican cannot, by virtue of the statute of limitation, avoid the payment of the note and mortgage given for the purchase-money and at the same time oust the plaintiff from the land. In such cases the statute of limitation is no defense. (Baker v. Ramey, 27 Tex., 52;Dunlap v. Wright, 11 Tex., 604;Lander v. Rounsaville, 12 Tex., 195;Robertson v. Paul, 16 Tex., 477.)

Watts, Lanham & Roach, for appellee.

I. Where an administrator filed his final account, and no heirs or claimants appeared or were represented at the subsequent term of the court, notwithstanding the publication of notice may not have been made for the full twenty consecutive days, the court has jurisdiction of the estate, and an order for the sale of real estate and confirming such sale, &c., would not be nullities. At most the want of notice would be an irregularity, that must be taken advantage of by direct proceeding, instituted within two years, &c. (Paschal's Dig., arts. 1350, 1351, 3676; Dancy v. Stricklinge, 15 Tex., 557;Burdett v. Silsbee, 15 Tex., 604;Hall v. Claiborne, 27 Tex., 222.)

II. The administrator's (A. J. Bell's) deed to Millican vested the title of the estate to the land in him, and the deed, note, and mortgage are not one instrument; nor is the legal effect thereof to vest the superior title in the estate or heirs until the purchase-money is paid. (Autrey v. Whitmore, 31 Tex., 623;Parker County v. Sewell, 24 Tex., 238.)

III. The note and mortgage set up, and upon which appellant alternatively sought judgment, is shown by appellant's pleadings to have been barred before the institution of this suit. (Paschal's Dig., art. 4604; Duty v. Graham, 12 Tex., 427.)

MOORE, CHIEF JUSTICE.

It was decided by this court in the case of Dunlap v. Wright, 11 Tex., 597, and has ever since been regarded by it as settled law, “that when a mortgage for the payment of the purchase-money for land is executed simultaneously with the deed by which it is conveyed, the vendor has, until the purchase-money is paid or the mortgaged foreclosed, the superior right; and if the vendor go into possession...