Graham v. Hawkins

• Citation: 38 Tex. 628
• Parties: M. GRAHAM v. J. E. HAWKINS ET AL.
• Decision Date: 01 January 1873
• Court: Supreme Court of Texas

38 Tex. 628

M. GRAHAM

v.J. E. HAWKINS ET AL.

Supreme Court of Texas.

1873.

1 To authorize the sale of land under the probate act of 1840, the administrator was required to obtain an order for sale, clear and specific in terms; and such order should be strictly pursued to pass title to the purchaser.

2. An order of the probate court under the act of 1840 for the sale of “so much land lying in Robertson county, and west of the Trinity river, as would pay the debts of the estate, amounting to about $1,500;” Held, void for uncertainty.

3. See this case for irregularities in a probate sale noticed in a collateral proceeding.

4. That one of the links in the chain of title of the defendant in possession is a quit-claim deed, when his deed and that of his vendor are warranty deeds, does not prevent his recovery upon his plea of bona fide purchaser, upon proof of the other requisites of such defense.

5. Where there was evidence introduced showing defects in proceedings which were requisite to the authority of the administrator to sell lands, the court, after instructing the jury that the law presumed everything legally necessary to have been done by the probate court, should have given the further charge that such presumption was overcome by facts which prove the contrary.

6. Against a defendant in possession holding under a warranty deed from a vendor who also claimed under a deed with warranty, it is error to charge the jury that the recitals in a quit-claim deed (of a remote vendor) were evidence of a prior unregistered conveyance (not recited in the same), as if such prior conveyance had been duly recorded.

7. The case of Burchard v. Rogers, 34 Tex. 441, limited.

ERROR from Ellis. Tried below before the Hon. Hardin Hart.

The appellees brought trespass to try title against appellant for three-quarters of a league of land, the headright of Littleton White, in Ellis county.

The appellant, Graham, pleaded not guilty, and that he was an innocent purchaser of 640 acres of the land.

Both parties claimed under the same title. The land was patented to Philip A. Sublett, assignee of L. White, April, 1847. March 1, 1842, Ph. A. Sublett conveyed to V. M. Sublett the Littleton White certificate by warranty deed, and recorded June, 1853.

Glover, administrator of V. M. Sublett, conveyed the land to appellees October, 1844. This deed was recorded in 1852. In this connection was read a transcript of the proceedings in the estate of V. M. Sublett, noticed in the opinion.

Appellant deraigned title as follows: Quit-claim deed from Phil. A. Sublett to G. A. Sublett, dated August, 1849; deed from G. A. Sublett to Malcomb Smith, June, 1852, and from Smith to appellant, September, 1852. The last two being deeds with warranty. The appellant proved payment of purchase money.

The quit-claim deed from Ph. A. Sublett was as follows:

“Whereas, I, Philip A. Sublett, sometime in the year A. D. 1842, sold to Valentine M. Sublett two certificates, for one league and labor of land each, to wit, the head right certificate of Littleton White and Live Dixon, and gave to the said Sublett my bond for an amount not recollected, conditioned that patents would issue upon said certificates; and whereas, the said Valentine M. Sublett died before the patents issued to said certificates; and whereas, said bond is now lost; and whereas, also, Geo. A. Sublett, brother of said Valentine M. Sublett, having caused said land to be surveyed and patented since the death of said Valentine; and the said Geo. A. Sublett appearing to be entitled to the benefits of said bond from me to the said Valentine, I do convey unto the said Geo. A. Sublett, his heirs and assigns, all my right, title, claim and interest in and to the league and labor of land, patented to me, as assignee of Littleton White, by the state of Texas, on the first day of April, A. D. 1847; and for a more perfect description of said land reference is hereby made to the accompanying patent of that date; to have and to hold the same granted premises, the said Geo. A. Sublett. his heirs and assigns forever, in fee simple. Given under my hand and seal, this fifteenth day of August, A. D. 1849.”

The court charged the jury, “that the recitals in the deed made by Philip A. Sublett to George A. Sublett carry legal notice of a prior conveyance by P. A. Sublett to V. M. Sublett; and that George A. Sublett and all other parties holding under that deed are affected by that notice as fully as if the prior conveyance from P. A. to V. M. Sublett had been placed upon record in the proper county immediately after its execution.

2. That the law presumes that everything legally necessary was done by the probate court of Bowie county, with regard to the sale of the land by Glover, the administrator; and that the administrator took all the steps legally incumbent upon him.”

Verdict and judgment for plaintiff, and defendants appealed.

J. W. Ferris, for appellant.

A. A. Kemble, attorney for appellees, cited McNally v. Chapman, 18 Tex. 198;Weathered v. Boon, 17 Tex. 148;Weathered v. Boon, 23 Tex. 676;Grumbles v. Sneed, 22 Tex. 574;Gilbeau v. Mays, 15 Tex. 415;Powell v. Haley et al. 28 Tex. 53;McCulloch v. Renn, 28 Tex. 793;Menifee v. Hamilton, 32 Tex. 495;Portis v. Hill, 30 Tex. 565;Jones v. Muisbach, 26 Tex. 235;Martin v. Parker, 26 Tex. 253; McAlpine v. Burnett, 23 Tex. 469; Mayfield v. Rennick, 11 Tex. 140; 1 Story, Eq. § 400; Pas. Digest, note 1092.

Amzi Bradshaw, attorney also for appellees, cited Brown v. Jackson, 3 Wheat. 449;Vattar v. Hinde, 7 Pet. 252;Hallett v. Collins, 10 How. 174;Rogers v. Burchard, 34 Tex. 441; Van Hook v. Simmons, 25 Tex. S. 323; Grignon v. Astor, 2 How. 319;Thompson v. Tolmie, 2 Pet. 157;McPherson v. Cunliff, 11 Serg. & R. 422;Withers v. Patterson, 27 Tex. 497;Flannigan v. Pierce, 27 Tex. 79;Alexander v. Maverick, 18 Tex. 179; Tolliver v. Hubble, 6 Tex. 146; Poor v Boyce, 12 Tex. 449;Wyman v. Campbell, 6 Port. 219;Lynch v. Baxter, 4 Tex. 443;Howard v. Bennett, 13 Tex. 315; Burdett v. Silsbee, 15 Tex. 506; George v. Watson, 19 Tex. 369; Null v. Cody, 26 Tex. 289;Giddings v. Steele, 28 Tex. 734; Pas. Dig. arts. 1327, 1328, 1333; Peevy v. Hurt, 32 Tex. 146.

WALKER, J.

The plaintiff in error, Graham, was the defendant, with others, in the court below. The action is trespass to try title.

A summary of the title may be thus stated: In April, 1847, the land was patented to Philip A. Sublett, the assignee of Littleton White.

The defendants in error claim under a transfer of the head-right certificate of White, by Philip A. Sublett, to V. M. Sublett, dated in March, 1842, and recorded in June, 1853, and by a decree of the probate court, and a deed from Martin Glover, as the administrator of V. M. Sublett's estate, dated October, 1844, and recorded ten years afterwards.

Graham, the plaintiff in error, claims 640 acres of the land by deed from Philip A. Sublett to George A. Sublett, dated August, 1849, and recorded in June, 1852; and by deed from George A. Sublett to Malcomb Smith, dated July, 1852, and recorded September, 1852, and by deed from Smith to himself, dated August, 1852, and recorded September, 1852.

The plaintiffs below, it will be seen, claim under a senior title; but it is contended that their title is invalid; that no valid title passed under the decree of the probate court, and the sale by the administrator of V. M. Sublett. The sale does not appear ever to have been confirmed, and it is claimed that it was not made in accordance with the decree, and is therefore void.

The plaintiff in error also insists, that he is a purchaser in good faith for a valuable consideration, and is not chargeable with actual or constructive notice of the senior title. If this be true, a court of equity must protect him against an unrecorded senior title.

It is insisted for error, that the administrator's deed was improperly admitted in evidence, there being no confirmation of the sale. There can be no doubt that a sale of lands, under an order of a court of equity, requires the confirmation of the court, in order to make the deed binding.

It appears that this sale was made under the act of 1840, by which law administrators were required to make a return, under oath, of their accounts of sales within one month from the date of the sale.

The act of 1840 does not, in terms, require a confirmation of the sale, but unless such were the intention of the law, there was certainly no necessity for the return; but there was a manifest necessity for such a return for the protection of all parties interested in the estates of deceased persons, and it was necessary that the order of sale should be certain and specific, and strictly pursued. Peters v. Caton, 6 Tex. 559. In this case the court hold, that the power given to executors and administrators, to sell land under an order of court, is a personal trust which must be strictly pursued; and if transcended in any essential particular, their acts will be void. The same doctrine is laid down in Brown v. Christie, 27 Tex. 77; and the case of Peters v. Caton is approved.

In Brown v. Christie the court decide, that where a...