Davis v. Stewart

• Decision Date: 31 December 1849
• Citation: 4 Tex. 223
• Parties: DAVIS v. STEWART, ADM'R.
• Court: Texas Supreme Court

4 Tex. 223

DAVIS

v.STEWART, ADM'R.

Supreme Court of Texas.

December Term, 1849.

Much discretion is left to the probate judge in refusing to confirm a sale. If he should believe that the sale was not fair, or that it was not made in conformity with law, it would be his duty to set it aside. He is not required to place upon record the reasons by which he is governed either in confirming or rejecting a sale.

A purchaser at a probate sale is aware that he is purchasing subject to the confirmation or rejection of the sale by the probate judge, and is not entitled to notice before the rejection of the sale. (Note 46.)

The probate judge has no power to revoke a title which has been made in pursuance of a sale which has been confirmed at a former term. (Note 47.)

Where a purchaser at a probate sale believes himself injured by the rejection of the sale by the probate judge, his remedy is by appeal to the District Court. (Note 48.)

If the court in which suit is instituted have no jurisdiction, an appeal by the plaintiff cannot be entertained, although the court to which the appeal is taken have original jurisdiction of the question.

Appeal from Gonzales. The executor of Clements applied to the court, under the statute of 1846, for an order of sale of a part of the real estate of his testator for the purpose of paying debts acknowledged. The application resulted in an order, on the 1st of June, 1848, granted by the Chief Justice of Gonzales county, for the sale, agreeably to the petition of the executor. The record does not show anything further of what was done under this order of sale until the September Term, 1848, of the Probate Court, when the death of the executor of Clements was suggested, and Stewart was appointed administrator of Clements with the will annexed. At the same term the administrator filed in court an account of the sale of the land, made by the executor, by which it appears that the sale had been made on the 4th July, 1848, at a credit of twelve months, and that Davis was the purchaser, and had given his note with security for the payment. The administrator asked the action of the court on the facts so by him shown, as his predecessor had died without making the return to the court. The Probate Court set aside the sale, and ordered the clerk to return the note filed by Davis to him. At the same term Stewart, the administrator, asked for and obtained a renewal of the order of sale of the same and some other property which by his showing was necessary for the payment of debts. And at the November Term of the court the administrator returned an account of the sale of the same land that had been sold before, and that one Jones was the purchaser. This sale was approved by the probate judge, and the administrator ordered to execute a title deed to Jones, the purchaser, &c. At the April Term, 1849, Davis, the appellant in this court, who had bid off the land at the first sale, filed his petition in the Probate Court, setting up the fact of his having been the purchaser at the first sale; that the sale had been set aside without his having any notice; alleging fraud on the part of the administrator in procuring the setting aside the sale, and praying that he be cited to appear, and be required to make title to him for the land so purchased. This petition was heard by the probate judge at the June Term, 1849, and dismissed. An appeal was taken to the District Court, in which court the appeal was dismissed.

Neill, for appellant. It was the duty of the District Court to have heard and adjudicated the case and rendered judgment, and remand that judgment if necessary for observance. The whole record shows an oppression and hasty action, when affecting the rights of a purchaser at a fair sale and for a fair consideration, (as is proven by the confirming the subsequent sale,) without any notice to him or in any way endeavoring to account for that course; and the fact of a knowledge of the purchase by Davis, and his compliance with the terms of sale, is clearly admitted by Stewart.

Philips, for appellee. It was the duty of any party interested in the sale to notice the action of the court on the return of sale made in pursuance of law; and if the discretion of the judge in confirming the sale was a subject of revision at all, it was by appeal. (Acts 1848, p. 280, sec. 123.)

As to the purchaser, if he had an interest and was in contemplation of law a party to the decree vacating the sale, when the sale was set aside and the time for taking an appeal had expired, his remedy was gone. The court had no jurisdiction over the subject as an original suit in the form it was presented by the petition. (Acts 1848, p. 113, sec. 2.) It was therefore properly dismissed. And for the same reason it was dismissed on appeal to the District Court; and it occupies no better attitude in this court. The rule is “that if the court a quo had no jurisdiction, the appellate court has none. (Aulanier v. The Governor, 1 Tex. R., p. 653.)

LIPSCOMB, J.

The proceedings for the sale of the land commenced under the act of 1846. That act...