Fulton v. Robinson

• Decision Date: 11 October 1881
• Docket Number: Case No. 2999.
• Citation: Fulton v. Robinson, 55 Tex. 401 (Tex. 1881)
• Parties: BENJAMIN FULTON ET AL. v. MARY E. ROBINSON ET AL.
• Court: Texas Supreme Court

55 Tex. 401

BENJAMIN FULTON ET AL.

v.MARY E. ROBINSON ET AL.

Case No. 2999.

Supreme Court of Texas.

Oct. 11, 1881.

APPEAL from Tarrant. Tried below before the Hon. H. Barksdale.

July 2, 1874, Mary E. Robinson and Sarah J. Choat (joined with their husbands), as heirs of Israel Earles, brought suit in “trespass to try title” for three hundred and twenty acres of land against Benjamin Fulton and Charles Harold.

July 13, 1874, defendants demurred and pleaded not guilty.

July 13, 1875, amending, defendants alleged that on 23d of March, 1859, one James Henderson bought of the said Israel Earles the land sued for for $1,120, of which $300 was paid at the date of the purchase, and the balance, $820, February 11, 1860, to Russell, administrator of Earles, which purchase was evidenced by a receipt in writing, being a receipt which will be found set forth in the opinion.

That on February 11, 1860, Russell, administrator of Israel Earles, under an order of the probate court, made at its January term, 1860, requiring him to do so, executed to Henderson a deed for the land; that the money by him paid to Russell ($820) was duly accounted for by Russell as administrator, and that the plaintiffs received full benefit of the same in the distribution of the estate; that Henderson, at the date of the purchase, took actual possession of the land, which possession was surrendered to him by Israel Earles, and that Henderson and those under him had erected thereon valuable improvements. Defendant further pleaded limitation of three and five years.

The statement of facts shows, on the part of plaintiffs, a patent for the land sued for, and proof of heirship.

Defendants proved the proceedings in the probate court, consisting of Henderson's petition to the probate court for title, upon the receipt, offering to pay the remainder of the purchase money. The administrator, Russell, accepted service of citation, and the court by decree ordered the administrator to execute a bond for title on payment, and at a subsequent term an order for title and administrator's deed was shown for the land to Henderson.

Russell testified that Earles told witness, when in his last illness, and a short time before his death, that he had sold the land to Henderson, and had turned over the tenant to him; had not made a deed; this seemed to trouble him; that Henderson had paid part of the money. Witness himself collected $820 as administrator of Earles, of Henderson; the money was paid in coin, and the coin was paid by witness over to the guardians of the children of Earles, including the plaintiffs.

Terrell & Walker, for appellants.

Smith & Jarvis, for appellees.

I. The receipt relied upon by appellants to establish a contract of sale by Earles to Henderson is fatally defective, in this: it contains no formal promise to convey, nor does it sufficiently state the terms of a contract to take it out of the statute of frauds, or to imply a promise to convey. It does not fix the price of the land, nor does it refer to any other writing fixing the price. Henderson, after Earles' death, fixed the deferred payment, by oral testimony, at $820. This could not be legally done. See Ellis v. Deadman, 4 Bibb, 466, a case exactly in point; Parkhurst v. Van Cortland, 1 Johns. Ch., 278;6 Blackf., 21;1 McCord, 425;Peters v. Phillips, 19 Tex., 74. In the case cited by appellants from 10 Tex., 444, possession was taken under the contract, and all the purchase money had been paid in the life-time of Vaughn.

II. There being no contract in writing for the sale of the land, and no promise in writing to convey, the probate court had no jurisdiction, and its proceeding, including Henderson's petition and the decree rendered thereon, was and is null and void. There being no jurisdiction, the court could not lawfully render any decree that would in any way affect the rights of appellees, or of their father's estate.

III. The payment of the $820 to the guardians of appellees, if indeed such payments were ever made, could not estop the appellees without the further proof that they, with knowledge of the facts, had...