Daimwood v. Driscoll

• Decision Date: 23 October 1912
• Citation: Daimwood v. Driscoll, 151 S.W. 621 (Tex. App. 1912)
• Parties: DAIMWOOD v. DRISCOLL et al.
• Court: Texas Court of Appeals

151 S.W. 621

DAIMWOOD v. DRISCOLL et al.

Court of Civil Appeals of Texas. San Antonio.

October 23, 1912.

On Motion for Rehearing, December 11, 1912.

Appeal from District Court, Nueces County; W. B. Hopkins, Judge.

Action by W. H. Daimwood against R. Driscoll and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Charles Turner, of Corpus Christi, and L. C. McBride, of Dallas, for appellant. G. R. Scott and Boone & Pope, all of Corpus Christi, and Dougherty & Dougherty, of Beeville, for appellees.

FLY, J.

This is an action of trespass to try title to three-fifths of 1,328.89 acres of land in Nueces county out of the Puenticitas grant, instituted by appellant against R. Driscoll, Samuel Althaus, and Jim Jacobson. Appellee Driscoll pleaded not guilty, and three, five, and ten years' limitation, and further pleaded his title to the land through a sale made by the executor of the estate of Mrs. Ursula Daimwood under authority of an order of the probate court of Nueces county, and that each of the heirs of Mrs. Ursula Daimwood, among the number appellant and Ida Magnenat and Amelia Augusta Daimwood, whose interest in the estate appellant claimed, received his or her proportion of the money received from the sale of the land, and each, in all things, fully ratified said sale. The suit was dismissed as to Althaus and Jacobson by appellant, and the cause was tried by the court and judgment rendered in favor of appellee.

On May 14, 1895, Mrs. Ursula Daimwood died in Corpus Christi, Nueces county, leaving a will in which she bequeathed the land in controversy, which she owned in fee simple, to her five children, Lelia Belle Daimwood, now Henderson, born September 18, 1880, Maggie May Daimwood, born February 14, 1882, Ida Gertrude Daimwood, now Magnenat, born November 1, 1883, Amelia Augusta Daimwood, born January 12, 1885, and appellant, William Henry Daimwood, born June 7, 1886. Lelia Belle was married to Fred D. Henderson December 6, 1905, and Ida Gertrude to Fred L. Magnenat October 25, 1906.

It was provided in the will that Charles A. Meuly, the brother of the testatrix, should be the executor of the will, and on March 23 1896, he duly and legally qualified as such, and, together with appraisers, returned into court an inventory and appraisement of the estate; the land in controversy being included therein. The inventory and appraisement were duly approved, and on May 4, 1899, the executor applied for and obtained from the probate court an order of sale of the land in controversy. The application for an order recited "that there are now no debts against said estate, except what is due your executor, and that said estate is not capable of partition among the heirs of said estate in a manner that would be just and profitable to them, or any of them, and that, in order to partition said estate with any degree of accuracy, a sale will be necessary." The only citation of the heirs indicated by the record was by posting notices.

In order to procure a sale under the provisions of chapter 22 of title 39, Rev. Stats., it is provided that an application for an order of sale shall be in writing, with a description of the real estate sought to be sold, accompanied by an exhibit in writing, verified by the affidavit of the executor or administrator, showing the claims approved and established by suit against the estate and the amount claimed on each, the estimated expenses of administration, and the property remaining on hand liable for the payment of such charges and claims. Article 2123. The citation in that case is a general one to all persons interested in the estate, describing the land to be sold, and requiring such persons to appear at the term named in such citation and show cause, should they so desire, why the sale should not be made. The citation is to be posted in the manner provided for other citations for 30 days, and the return made in the usual manner. That kind of notice was given in this case.

Probate courts are courts of general jurisdiction in matters pertaining to estates of deceased persons. Murchison v. White, 54 Tex. 83; Crawford v. McDonald, 88 Tex. 626, 33 S. W. 325. But, in order to obtain the power and authority to sell the lands of an estate to pay debts, or to partition them, there must be citation as directed by statute. In a collateral attack, however, as this undoubtedly is, it will be presumed that due service had been obtained. Bouldin v. Miller, 87 Tex. 359, 28 S. W. 940; Hines v. Givens, 29 Tex. Civ. App. 517, 68 S. W. 295; Templeton v. Ferguson, 89 Tex. 57, 33 S. W. 329; Moore v. Hanscom, 101 Tex. 293, 106 S. W. 876, 108 S. W. 150.

The citation was issued as provided for in case of a sale of land to pay debts, but the application for the sale does not comply with the law; but it has been held that, even though the application fails to state the grounds given by statute, still that will not render the sale void. Kleinecke v. Woodward, 42 Tex. 314; Gillenwaters v. Scott, 62 Tex. 670; Jackson v. Houston, 84 Tex. 622, 19 S. W. 799; Weems v. Masterson, 80 Tex. 45, 15 S. W. 590; Taffinder v. Merrell, 95 Tex. 95, 65 S. W. 177, 93 Am. St. Rep. 814. Not being void, it could not be attacked in a collateral proceeding.

The application for the sale could not have been one for partition, although it so stated therein; for it had none of the essentials of an application for a partition. As an application for the payment of debts, although defective, it would form the basis for an order that could not be attacked in a collateral proceeding.

If there was no notice of the sale given by the executor, it would not follow that the sale was void; for it has been held a number of times in this state that orders of sale of real property, without the notice prescribed, are not void, but merely irregular and voidable. George v. Watson, 19 Tex. 369; Hurley v. Barnard, 48 Tex. 87; Heath v. Layne, 62 Tex. 686; Lyne v. Sanford, 82 Tex. 58, 19 S. W. 847, 27 Am. St. Rep. 852; Kendrick v. Wheeler, 85 Tex. 247, 20 S. W. 44; Halbert v. Martin, 30 S. W. 388; Hirshfield v. Brown, 30 S. W. 962.

When the court acted upon the application and made the order of sale and then confirmed it, appellee was not required to look beyond those orders, and could proceed upon the assumption that the order was properly made upon notice and facts that authorized it. Weems v. Masterson, herein cited; Robertson v. Johnson, 57 Tex. 62; Edwards v. Halbert, 64 Tex. 667; Butler v. Stephens, 77 Tex. 599, 14 S. W. 202; Corley v. Goll, 8 Tex. Civ. App. 184, 27 S. W. 820; Stroud v. Hawkins, 28 Tex. Civ. App. 321, 67 S. W. 534. As said by our late Chief Justice James in the case of Corley v. Goll: "We are strongly inclined to the opinion that where such a sale is brought into question in a collateral manner the decree of confirmation should protect the purchaser, and be preclusive of all questions, save that of jurisdiction of the court over the estate, which, as we have seen, the court had in this instance." Or, as said in Heath v. Layne, cited: "The purchaser is not required to go behind the order of probate sale to see that the administrator has been duly appointed and continued, and that the proceedings have all been regular." The record in this case does not show want of jurisdiction in the probate court. If the record showed a failure to obtain service for a partition, it did not show it as to a sale. Those interested in the estate were properly cited as to a sale of the property.

The money arising from the sale was used for the maintenance and support of the heirs, and all of them, having full knowledge of the sale, ratified and confirmed it when they became qualified so to do. All the facts and circumstances tend to show that they knew about the sale of the land and settled with the executor and gave him a full receipt for everything for which he was indebted to each of them. He testified to that fact, and none of them denies it. The land brought its market value, and appellant, as well as his sisters, received the benefit of every dollar of it. It has been held that an infant is not permitted, in...