Cruse v. O'Gwin

• Decision Date: 04 December 1907
• Citation: 106 S.W. 757
• Parties: CRUSE et al. v. O'GWIN et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

106 S.W. 757

CRUSE et al. v. O'GWIN et al.^*

Court of Civil Appeals of Texas.

December 4, 1907.

Rehearing Denied January 8, 1908.

Appeal from District Court, Tyler County; W. B. Powell, Judge.

Action by J. W. O'Gwin and others against Annie Cruse and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

J. A. Mooney and W. W. Cruse, for appellants. Robt. G. Johnson and T. C. Mann, for appellees.

FLY, J.

This is an action of trespass to try title to the southwest one-fourth of the Robert Lucas league of land in Tyler county, prosecuted by J. W. O'Gwin and ten others against Annie Cruse and six others, one of them, W. W. Cruse, being sued as the administrator of the estate of E. Cruse, and Annie Cruse being sued in her individual capacity, and also as the guardian of the minors, Ruth and John Knight Cruse. The cause was tried by the court, without a jury, and judgment was rendered for the land in favor of appellees. The record contains the findings of fact of the court, as well as a transcript of the evidence prepared by the official stenographer. The land in controversy was granted to Robert Lucas, as a colonist, in 1835, and appellees claim the land as his heirs, while appellants claim it through a deed made by John Lucas, administrator of the estate of Robert Lucas, to David M. Evans, in 1841. That deed was held to be null and void by the trial judge and rejected, and the result of this appeal is dependent upon the propriety of that rejection. The findings of fact of the trial judge are adopted by this court. The following summary of the evidence is a correct version of the testimony in the case as to the administrator's deed: "On December 19, 1840, at a special term of the probate court of San Augustine county, John Lucas was appointed temporary administrator of the estate of Robert Lucas, deceased; no attempt being made in said order to define the powers and duties of such temporary administrator. On the same date said probate court ordered John Lucas, as temporary administrator, to sell an undivided one-half of the Robert Lucas league on a credit of ____ months. * * * On December 28, 1840, said probate court ordered that letters of administration be granted to John Lucas upon the estate upon his giving bond and security. On March 15, 1841, John Lucas filed in the probate court of San Augustine county a report of sale of one-haif league of land located in Liberty county, to Daniel M. Evans for $350, reciting the day of sale as the 2d and 3d day of March, 1841, but not stating otherwise the manner or place of sale. On August 30, 1841, John Lucas, as administrator of Robert Lucas, deceased, executed the deed to Daniel M. Evans before recited for a recited consideration of $250 paid by the said Evans to the said Lucas. On the same day the said Evans conveyed the land covered by said purported administrator's deed to John Lucas."

The trial court held that the deed was void because no order of sale was made except to the temporary administrator, who was not qualified under the law to sell land, because the permanent administrator could not sell under authority of an order to the temporary administrator, because the sale was not made on credit as required by law and the order of the court, because the consideration was for less than was reported to have been bid, because there was no confirmation of sale, and because the sale was made of definite tracts, when the order directed the sale of an undivided interest. If there is sufficient evidence to indicate that there was no order of sale to the permanent administrator, or if the circumstances are of such a nature as to preclude a presumption of the existence of such, there is no necessity for any other reason for the invalidity of the deed to be given. We are of the opinion that if an order of sale can be presumed the deed should be sustained. The question of consideration recited in the deed is of no importance, and it has been held that the administrator may violate the terms of the law and the order of the court, as to credit sales, but that such violation would not render the sale void. Sypert v. McCowen, 28 Tex. 639; Perry v. Blakey, 5 Tex. Civ. App. 331, 23 S. W. 804. As to the ground that the sale was invalid by reason of the administrator selling definite tracts of land, when directed to sell an undivided interest, it may be said that the question cannot arise unless the order to the temporary administrator is consulted, and if, as we believe, that order could not support a sale of land, the sale must be sustained, if at all, upon the presumption that an order of sale to the permanent administrator was made, and if we presume an order it will be one, of course, that upholds the deed. Will the order to the temporary administrator sustain the sale, and, if not, will the circumstances surrounding the case raise the presumption that there was an order of sale directed to the permanent administrator issued by the probate court? Those are the questions to be considered and to which we shall devote our attention.

The order to sell, given to the temporary administrator, was made on the day of his appointment, at a time when neither he nor the court could probably have known the condition of the estate and the necessity for the...