Finch's Heirs v. Edmonson

• Decision Date: 01 January 1853
• Citation: 9 Tex. 504
• Parties: FINCH'S HEIRS v. EDMONSON AND OTHERS.
• Court: Texas Supreme Court

9 Tex. 504

FINCH'S HEIRS

v.EDMONSON AND OTHERS.

Supreme Court of Texas.

1853.

The object of the statute, (Hart. Dig., art. 667,) which prescribes the places at which suits shall be instituted, was to provide for the protection and convenience of resident citizens, by preventing them from being drawn from home to distant counties to defend suits which might be instituted against them; and, to carry out that object, a liberal construction will be given; but where the statute is invoked for any other purpose, it is not entitled to any other than its plain literal meaning.

Where a suit is brought to annul a pretended probate sale and to remove the cloud, &c., it is not necessary that it should be instituted in the county where the land lies, but it may be instituted in the county where the defendant resides. (Note 88.)

See this case respecting the proper place for the institution of suit where fraud is alleged, or an administrator is a defendant, although the suit be to “““““recover land or damages thereto.”

See this case for allegations of fraud, which were held to constitute good ground for setting aside a probate sale.

In order that a probate sale under the act of 1846 should be valid, it was necessary that a petition for an order of sale should be filed as required by the 17th section of that act. (Hart. Dig., art. 1099.) This was necessary in order to give the court jurisdiction. The authority to order a sale was special and limited. (Note 89.)

By the act of 1846, the jurisdiction of the Probate Court could not attach on the question of a sale of the land until after petition filed for that purpose and a return of citation; and an order of sale and sale made without these prerequisites were void, and may be impeached in a collateral proceeding. (Note 90.)

Error from Walker. The plaintiffs in error sued the defendants in error for the cancellation of certain deeds, and to quiet their title to one-third of a league of land, the headright of Matt. Finch, who died intestate in 1841, leaving the plaintiffs in error his heirs at law. It was alleged that one Joseph Bennett was appointed administrator of his estate on 30th of November, 1846, by the Probate Court of Walker county, and on 29th March, 1847, returned an inventory of the property into court, and, among other property, returned an undivided half of said third of a league, and at the same time obtained an order of sale to sell the same, in pursuance of which the same was sold on 4th of May, 1847, for $87.97-100, to Alexander McDonald, and the sale confirmed at the May Term of the court, thereafter; that Bennett collusively required of the purchaser only his note for the purchase-money, without mortgage; that the note was yet unpaid; that the proceedings in the Probate Court, ordering and confirming said sale, were null and void, because there was no petition filed by the administrator showing any necessity for a sale or giving that court any jurisdiction to order the same; that the estate owed no debts at the time said sale was ordered; that the purchaser, McDonald, died intestate in January, 1851; that Margaret McDonald, his widow, one of the defendants, was appointed his administratrix, and that on 7th October, 1851, she sold the interest of her intestate's estate in said land, under an order of the County Court of Walker county, on a credit of twelve months, at which sale the defendant Edmonson became the purchaser for $10.50-100, with full notice of all the facts charged in the petition, and gave his note and mortgage for the purchase-money. The land was stated to be in Polk county and worth four dollars per acre, at the time of the said sales respectively; that Bennett, the administrator, died in 1848, and that the estate was without a legal representative; that there were no debts or claims against the same; and that petitioners were the only persons interested in said estate. It was alleged that Edmonson resided in the county of Walker.

To this petition none of the defendants answered except Edmonson, who filed, among other pleas, a special demurrer, alleging that the judgment of the Probate Court ordering and confirming the sale by the administrator, Bennett, was final and conclusive, and could not be impeached collaterally and declared void in this suit. 2d. That if plaintiffs were aggrieved their remedy was against Bennett, the administrator, and not against the purchaser at the sale made by him. The court sustained the demurrer and dismissed the suit for want of jurisdiction to take cognizance of the same, from which judgment the plaintiffs prosecuted this writ of error, and assigned for error that the court erred, 1st, In dismissing the suit for the want of jurisdiction; 2d, In sustaining the demurrer.

A. P. Wiley, for plaintiffs in error. I. The first error assigned presents the question, Had the District Court of Walker county jurisdiction to take cognizance of the matters and things charged in the petition? There was no plea to the jurisdiction filed, but the court “ ex mero motu” dismissed the suit under the 11th exception to the act regulating proceedings in the District Court, which declares “that in cases where the recovery of land or damages thereto is the object of a suit, suit must be instituted where the land or part thereof is situated.” The court seemed to regard the snit in no other light than as an action of trespass to try titles, and therefore that suit should have been instituted in Polk county, where the land was situated. (Hart. Dig., p. 241.) In this it is respectfully submitted that the court erred; for the petition is, in form and substance, an application to a court of equity for the cancellation or delivery up of certain deeds, and to set aside certain proceedings on certain alleged grounds, which, it is alleged, constitute a cloud upon complainant's title; and if the facts charged in the petition are true, then it is submitted that Margaret McDonald, administratrix of A. McDonald, was a necessary party to the suit, as she held a lien or mortgage upon the land to secure the purchase-money from Edmonson, and as such, interested in defending the validity of the proceedings in the Probate Court. If, then, the administratrix of A. McDonald under the circumstances was a proper party, suit was properly brought in the county of Walker, where she obtained her letters of administration. (See Neill v. Owen, Administrator, 3 Tex. R., 145; Richardson & Wife v. Pruitt's Administrator, Id. 223; Hart. Dig., 241, 5th exception.) The object of this suit is not to “recover possession of the land or damages thereto,” but to remove certain clouds and to quiet the title, and is not a matter of strict and absolute right as an action of ejectment is, but is a matter for the sound discretion of the court, which in granting relief may impose upon the complainants such terms as the justice of the case may seem to require. (See Hatch v. Garza, 7 Tex. R.) The fraud and collusion charged in the sales is a prolific source of equity jurisdiction, and would under the 6th exception give the District Court of Walker county jurisdiction, if it did not possess it, from the fact that it was the domicil of the defendant, Edmonson. It is also against the spirit and general intent of the act to compel a defendant to answer out of the county of his residence if any reasonable construction of the 11th exception will avoid it. (See Richardson et ux. v. Pruitt's Administrator, 3 Tex. R., 231, before cited.)

II. The next question is, was the petition obnoxious to the demurrer? What are the facts which it admits? It admits that an undivided half of a third of a league of land, worth four dollars per acre, about three thousand dollars in value, was sold by Bennett, the administrator of Finch, to A. McDonald, under an order of the Probate Court, for eighty-seven dollars and ninety cents; and that he collusively took his note, without mortgage, for the purchase-money, which is yet unpaid; that said order was obtained without any petition filed, and when there were no debts against the estate to pay; that the defendant Edmondson, with full notice of these facts charged, bought the land at the succession sale of McDonald on a credit of twelve months for the sum of ten dollars and a half, and executed his note and mortgage for the purchase-money. If from these facts the title of Edmondson is held to be good, the heirs of Finch have lost the land worth three thousand dollars without having received one cent therefor, or the estate deriving any benefit therefrom--a consequence too monstrous to be upheld and sustained by a court of justice unless the clearest principles of law can be invoked in its support.

But it is believed that the law will give no countenance to the proceedings of the Probate Court, under which Edmonson derives his claim of title. The law of 1846, which was in force at the time the order of the sale was made, provides “that when a sale of land or negroes becomes necessary for the payment of debts, application shall be made therefor by petition in writing, filed with the clerk;” it further provides what the petition shall contain, and for citation to parties interested, and that an answer may be filed to the petition, showing objections to a sale. In the language of this court in the case of Jones v. Taylor, “the authority conferred on the Probate Court by this section is special and limited and must be strictly pursued, otherwise the acts and proceedings had thereon are nugatory and confer no right.” (Jones v. Taylor, Tex. R.; Hart. Dig., p. 351.) In this case there was no petition filed nor any step taken to vest the Probate Court with jurisdiction to order the sale. The whole proceeding, from beginning to end, was coram non judice. The case of Lynch et al. v. Baxter et ux., administratrix, that went up from Washington county and was decided by this court, which is so much relied on in support of Edmonson's title, is an...