Giddings v. Steele

• Citation: 28 Tex. 732
• Parties: JAMES D. GIDDINGS v. MOSES E. STEELE.
• Decision Date: 31 October 1866
• Court: Supreme Court of Texas

28 Tex. 732

JAMES D. GIDDINGS

v.MOSES E. STEELE.

Supreme Court of Texas.

October, 1866.

It is a general rule that heirs cannot sue in their own right as heirs for property of their ancestor's estate; but there are exceptions to this rule, as when there is no administrator or executor, or when the administration has been closed. 2 Tex. 182, 400.

It would seem to be a safe rule not to permit heirs to recover property of the estate in their own name, unless they make it appear that the administration has been closed, or that there is no administrator appointed or acting, and no debts against the estate. 8 Tex. 182;9 Tex. 15, 504;12 Tex. 285;16 Tex. 335;18 Tex. 652; 25 Tex. S. 1.

If an administrator's sale of property be canceled on account of fraud the property thereby becomes unadministered assets of the estate, and falls back into the hands of the administrator for disposition in due course of the administration. If necessary for the protection of parties concerned, the administrator who made the fraudulent sale can be removed and an administrator, de bonis non, be appointed; or a receiver might, perhaps, be appointed at the instance of the heirs, for the protection of the property of the estate until the appointment of a more faithful administrator. 2 Tex. 182;4 Tex. 382;15 Tex. 604.

If the heir in his own name institute suit in the district court to recover property fraudulently sold by the administrator of the estate, and in such suit allege and show that there were no debts against the estate, and that the administration upon it was fraudulently procured, the suit, perhaps, may be maintained, but it is upon the ground that there are no debts against the estate and no administrator. But it would seem that if the administration were legal and valid, and were still open, the suit would not be maintainable, even if the sale by the administrator was fraudulent; for in that state of the case the property, on a cancellation of the fraudulent sale, would not accrue to the heir, but would fall back into the estate for administration. 2 Tex. 182;9 Tex. 247;15 Tex. 604;26 Tex. 131.

By the 36th section of the act of the 5th February, 1840, which was in force in 1846 (Hart. Dig. Art. 1030), a rule was prescribed by which a probate judge, on every application for letters of administration, should determine, by proof, whether his county were the proper one wherein the administration should be granted; and his decision upon that question was conclusive until reversed on appeal or other proceeding taken for its revision, and it cannot be attacked in a collateral action. Pas. Dig. art. 1260, note 462, p. 301; 7 Tex. 523;9 Tex. 18;12 Tex. 285;13 Tex. 192;15 Tex. 535, 551, 616;18 Tex. 97, 100;23 Tex. 494;27 Tex. 73.

When a probate court has jurisdiction of an estate, mere irregularities or unsupplied omissions in its proceedings, had in granting letters of administration or orders of sale, do not invalidate the letters or orders. Pas. Dig. arts. 1260, 1314, notes 462, 488; 4 Tex. 431;12 Tex. 440;15 Tex. 557;18 Tex. 88, 100;27 Tex. 491.

An administrator re-established by suit a land certificate which had been rejected by the traveling board of land commissioners, and which, but for his action, must have been lost to the estate, and afterwards he sold the certificate under order of the probate court for the payment of claims against the estate. The heir of the estate instituted this suit to recover from the purchaser the land acquired by him under the certificate, alleging that the probate court, by which the administrator was appointed, had not jurisdiction to grant administration on the estate; that the letters of administration were procured by a fraudulent combination between the administrator and the purchaser of the certificate; that there was fraud in the sale of the certificate, or in the procurement of the order of sale therefor; and, in consequence, that the sale of the certificate was void: Held, that the heir is estopped from denying the capacity of the administrator by whom the certificate had been acquired for the estate, but is not estopped from averring and proving that there was fraud in the sale or in the procurement of the order therefor. 12 Tex. 440;14 Tex. 175.

An administrator becomes himself liable for the proceeds of property of the estate sold by him on a credit, if he make a conveyance of the property without taking note and security as required by law, and when a conveyance of property so sold has been made by an administrator, it is to be presumed, in the absence of proof, that the terms of the sale were complied with. Pas. Dig. arts. 1327, 1328, 1333, notes 498, 499.

But, even if it be proved that the purchase money of an unlocated land certificate had not been paid by the purchaser to whom it was conveyed by the administrator, it does not follow that the heir would be entitled to the land acquired by the purchaser under the certificate. The recovery of the purchase money from the purchaser or the administrator would seem to be the extent of the relief to which the estate or heir would be entitled in such case.

It is the duty of the courts to transfer administrations to new counties, under the statute, and it is no evidence of fraud to make the transfer. Pas. Dig. arts. 1257 to 1259, note 461.

Where suits on notes were instituted against a party who died after being served with process, and his death was suggested to the court, but his legal representative was not made a party in his stead (Pas. Dig. art. 7, note 225), and judgments on the notes were rendered against the deceased defendant, the judgments so rendered were not absolutely void, but only voidable, and on writs of error, coram nobis in the court where rendered, they might have been set aside and correctly rendered against the representative of the deceased defendant. It was error, therefore, to instruct the jury that such judgments were void, and could not constitute valid demands against the estate of the deceased defendant, but that the original notes on which the judgments were rendered were the evidence of indebtedness instead of the judgments themselves, and that, if such notes were barred by limitation at the date of the appointment of the administrator, they could not be made, even by allowance and approval, valid claims against the decedent's estate, so as to authorize the grant of an order of sale of property to provide for their payment. 4 Tex. 485;5 Tex. 289, 294;8 Tex. 36;9 Tex. 294;18 Tex. 573;21 Tex. 154;24 Tex. 468;ante, 443.

An approval by the probate judge of a claim allowed by an administrator against the estate he represents is a quasi judgment against the estate, and cannot be annulled in the county court, but only in the district court, on a direct proceeding to set aside the approval on the ground of fraud or mistake, which proceeding must be instituted within a reasonable time after the rendition of the judgment of approval. Pas. Dig. arts. 480, 1312, notes 334, 335, 485; 5 Tex. 487;11 Tex. 116;14 Tex. 315;16 Tex. 138;17 Tex. 138;23 Tex. 254, 496.

It is competent for the heir of an estate to institute in the district court a proceeding to annul the approval by the probate judge of a claim against the estate, on the ground that the allowance of the claim by the administrator was fraudulent. 18 Tex. 736.

The rule is believed to be almost universal, that contracts are presumed to be fair and not unlawful or fraudulent; and the party who attacks them as fraudulent has the burden upon him of proving the fraud by positive or circumstantial evidence. 9 Tex. 247;18 Tex. 179, 765, 847;24 Tex. 468.

Fraud will vitiate judgments of courts and transactions or proceedings based upon them, however authentic they may appear to be; but judgments will not be set aside on mere surmise or suspicion of fraud, nor merely technical fraud, but only on account of actual and positive fraud in fact, established by evidence which naturally and reasonably tends to that conclusion. Pas. Dig. art. 3876, notes 906, 907; 26 Tex. 57.

That an attorney at law held claims against an estate for collection, and used all legal efforts to obtain an order of sale of property of the estate to provide for their payment, and at the sale became himself the purchaser of the property sold, are not facts which tend to prove fraud in the sale or in the order therefor. It was his duty as an attorney to obtain payment of the claims in that or any other lawful manner, and he had as much right as other persons to bid for the property at the sale.

See the opinion of the court in extenso for an elaboration of the foregoing rulings, and for the application of them to the facts of this case.

APPEAL from Williamson. The case was tried before Hon. EDWARD H. VONTRESS, one of the district judges.

The appellee, Steele, brought this suit on the 21st of August, 1857, to recover from Giddings, the appellant, and one Chadwick, a league and labor of land in Williamson county. In his original petition, the plaintiff alleged that he was the sole heir of William H. Steele, deceased, and as such was the legal and equitable owner of the land sued for, but had been ousted of possession by the defendants; that the defendant, Giddings, had confederated with one R. H. Flannikin to cheat and defraud plaintiff out of the land and the certificate located on it; that Flannikin had, without any authority of law, assumed to act as administrator of said William H. Steele, deceased, and had in that capacity executed to Giddings a deed for the certificate under which the land sued for was located, and that Giddings had subsequently conveyed by deed to the defendant, Chadwick, two hundred acres of the same land. Prayer for judgment canceling said deeds, and for the lands sued for and damages.

The defendants excepted generally, and plead not guilty and the general denial. Subsequently, on the 14th of March, 1860, they amended their answer, and denied any fraud or collusion...