Clayton v. McKinnon

• Decision Date: 11 January 1881
• Citation: 54 Tex. 206
• Parties: HENRY F. CLAYTON v. N. M. MCKINNON ET AL.
• Court: Texas Supreme Court

54 Tex. 206

HENRY F. CLAYTON

v.N. M. MCKINNON ET AL.

Supreme Court of Texas.

Jan. 11, 1881.

APPEAL from Fayette. Tried below before the Hon. L. W. Moore.

Suit by Henry F. Clayton, the appellant, for an undivided interest in 988 acres of land deeded to his deceased mother, Charlotte Clayton, by Keziah Taylor, on July 26, 1877. N. M. McKinnon, and quite a number of others, who were alleged to be in possession, were made defendants.

Plaintiff alleged that his mother died intestate in 1857, leaving surviving her five children; that N. M. McKinnon qualified as the administrator of her estate and administered thereupon until its close; that during the progress of administration the land of the estate was sold under a decree of partition; that J. L. Smith bought 422 acres and A. M. Hanna about 566 acres, both tracts having been sold on twelve months' credit; each of said purchasers executed his note for the purchase money therefor; that purchase money was never paid; that shortly prior to the sale of the land, three of the chilren and the plaintiff being minors, their father, Henry R. Clayton, was made their statutory guardian; that after the sale, the administrator delivered to the guardian the note of John L. Smith, who, instead of collecting same, bought with it from Smith the same tract of land for which the note was originally executed, and in addition thereto the guardian executed his individual note for $200 to Smith.

That the plaintiff having arrived at his majority on the 26th of December, 1876, elected to sue and does sue for his interest in the land; that the sale of the tract of land, sold to A. M. Hanna, upon the application of the administrator, in which Hanna concurred, was by the probate court set aside and vacated; that upon the vacation of the sale, A. M. Hanna reconveyed the land to the estate of Charlotte Clayton, deceased; that all the debts of the estate were paid; praying that the court cancel and vacate the deeds of those in possession of said land, who are claiming same in derogation of the rights of plaintiff and his co-heirs.

The defendant, Henry Schafer, by his first supplemental answer, filed May 15, 1878, which will indicate most of the other defenses, presented:

1. The admission that, upon the vacation of the sale of the tract of land purchased by A. M. Hanna, the title thereto reverted to the estate of Charlotte Clayton.

2. That at the April term, 1868, of the probate court, a partition was effected of said land among the heirs of said Charlotte Clayton. That to Authora McKinnon, she being one of said heirs, a portion of said land was set aside.

3. That for a valuable consideration and in good faith, he, defendant, purchased his portion of said land from said Authora McKinnon; that he had no notice of any outstanding title to said land.

4. Admitted the sale of the 422 acres of the land to John L. Smith, and the sale thereof by said John L. Smith to H. R. Clayton by a deed of conveyance, reciting a money consideration, and not disclosing any trust or equitable title in the wards of H. R. Clayton.

5. That if the land was bought by said Clayton with the funds of his wards, that after his death the guardian of the plaintiff and the guardian of his co-heirs elected to reclaim the funds of their wards by their presenting claims for money against the estate of their former guardian, and asserting a lien on said tract of land, which was recognized and judicially foreclosed for their benefit.

6. That at the January term, 1868, of the probate court, plaintiff's guardian and the guardian of his co-heirs, and John L. Smith, appeared in court as creditors of the estate of H. R. Clayton, for the purpose of enforcing their respective liens on the land; that the court decreed the sale of the land; that Neill M. McKinnon, guardian of Eveline, Lucinda and Charlotte E. Clayton, the co-heirs of plaintiff, by virtue of an order of said court, bought 307 acres; that Henry Schawe, John Mernitz, F. Mernitz and W. Hahnke bought 115 acres of said land; that the sale was confirmed by the court at its April term, 1868.

7. That under a decree of the probate court he bought 107 acres, which sale was confirmed; that the several judgments are still in force.

8. A disclaimer to any interest in the land sued for, except the portions claimed by him.

9. Adverse possession in good faith by him, and those under whom he claimed, for more than one year before the suit was brought.

10. Permanent and valuable improvements.

On the 15th of May, 1878, plaintiff filed his first supplemental petition, by which he presented:

1. That he ought not to be precluded from maintaining his action by reason of the matters pleaded by each of the defendants; because, while the proceedings and the decrees were being had in the probate court, he was a minor; and because the proceedings were had without personal service upon plaintiff.

The defendant, N. M. McKinnon, by his second supplemental answer, filed on the 15th of May, 1878, presented:

1. The adoption by him of all the pleas and answers of his co-defendants.

2. A general denial by him and all his co-defendants to plaintiff's first supplemental petition.

3. That E. L. Alford, administrator of the estate of H. R. Clayton, received for plaintiff's benefit the proceeds of the sale of 422 acres of land; that the proceeds were either accounted for or are ready to be accounted for to plaintiff.

4. That plaintiff ought not to reclaim property without tendering the proceeds thereof.

Judgment for defendants, ordering partition of the 338 acres of land, as prayed for by defendants, a jury being waived.

A note was read in evidence purporting to be a vendor's lien upon the 422 acres of land bought by John L. Smith on the 6th day of December, 1859, from the administrator of Charlotte Clayton's estate, for which John L. Smith executed his promissory note to said McKinnon for $2,856.65, which note was, on the 11th of January, 1862, delivered by McKinnon to H. R. Clayton, as the guardian of the minor children of Charlotte Clayton, for their benefit and as an advancement to them.

On the 11th day of January, 1862, the guardian purchased from John L. Smith the same 422 acres of land, and as the consideration therefor, the guardian returned to Smith the note for $2,856.65, and in addition thereto executed to Smith his individual note for $200. Said 422 acres of land were adjudged by a decree of the district court to be the property of the minor children of Charlotte Clayton.

A. Haidusec, for appellant.

I. The probate court, being a creature of statute with limited jurisdiction, had no authority to adjudicate upon the...