Hanner v. Moulton

• Decision Date: 02 March 1891
• Citation: Hanner v. Moulton, 138 U.S. 486, 11 S.Ct. 408, 34 L.Ed. 1032 (1891)
• Parties: HANNER et al. v. MOULTON et al
• Court: U.S. Supreme Court

138 U.S. 486

11 S.Ct. 408

34 L.Ed. 1032

HANNER et al. v. MOULTON et al.

March 2, 1891.

J. D. Park, for appellants.

Sawnie Robertson, for appellees

BLATCHFORD, J.

This is a bill in equity, filed January 27, 1882, in the circuit court of the United States for the northern district of Texas, by John W. Hanner, Jr., James D. Park, and John S. Park, Jr., against Lewman G. Moulton, M. C. Moulton, C. R. Beaty, Clement R. Johns, J. C. Kerby, Flavius Everett, W. Von Rosenberg, and the corporation of C. R. Johns & Co., to establish the title of the plaintiffs to three several tracts of land in the state of Texas, one of 586 acres in Ellis county, one of 640 acres in Falls county, and one of 250 acres in Clay county. The bill prayed that the deeds under which the defendants claimed title to such land might be declared null and void. The plaintiffs asserted title to it as devisees under the will of Thomas Park, who died in the state of Tennessee, where he resided, on September 4, 1866, leaving a last will and testament, executed March 20, 1866, one clause of which was as follows: 'I will to John W. Hanner, Junior, James Park, and John Park, Junior, my tract of land, containing near fifteen hundred acres first-rate land, lying, I believe, in Ellis county, Texas. My papers are in the hands of J. A. N Murray and William H. Gill, of Clarksville, Texas, who must account for all papers of mine found in the hands of William A. Park's widow at his death All other lands I may own, and not disposed of by will, may be given to Dr. Jas. P. Hanner.' The testator did not own at any time any land in Ellis county, Tex., and the defendants insisted that he did not own any other land in Texas to which the devise referred or could refer; but at the time of his death he owned what was called a head-right certificate for one-third of a league, or 1,476 acres, of land, issued by the republic of Texas, May 3, 1838, to William H. Ewing; Ewing having conveyed to the testator, by deed dated April 9, 1846, all his right, title, and interest to the land which had been or might be located and surveyed by virtue of such head-right certificate, the deed warranting to the grantee the peaceable possession of the land against all claims to be made under the grantor. By a codicil to his will, executed August 25, 1866, the testator appointed James P. Hanner his executor. The will was admitted to probate in the probate court in Tennessee, and letters testamentary thereon were issued to James P. Hanner. Subsequently, and on July 8, 1867, at the instance of the Tennessee executor, Clement R. Johns, one of the defendants in this suit, applied to the county judge of Travis county, in the state of Texas, sitting as a probate court, praying that letters of administration might be issued to him on the estate of James Park, with the will annexed, and produced a certified copy of the will, with satisfactory evidence of the probate thereof in Tennessee; and it was admitted to probate in Texas, and letters of administration with the will annexed were granted to Johns, at the July term, 1867. At the same term he presented to the probate court of Travis county an inventory of the estate, which did not include the 1,476 acres, but stated that there were other lands in the state claimed by the heirs, which would be reported by him as soon as a knowledge of the same could be obtained by him sufficient to identify them. On January 1, 1869, Johns filed in the probate court a supplemental inventory, which stated that, since filing the original inventory, he had found a land certificate belonging to the estate, for one-thir of a league, or 1,476 acres, granted to W. H. Ewing, and transferred by the latter to James Park, and which was appraised January 1, 1869, by appraisers appointed by the court, at the value of $200; and that that was all the additional property to which title had been discovered. He further stated that, the certificate being lost, he had obtained a duplicate of it, and asked for an order to sell it, to pay the expenses of administration and the expenses of looking up the estate, which then amounted to over $100. The court thereupon made an order that he proceed to sell the land certificate, for cash, on the first Tuesday in February, 1869, after giving due notice. On the 26th of February, 1869, on the representation of the administrator to the court that by accidental omission the sale had not taken place, it made an order that he sell the certificate for cash on the first Tuesday in April, 1869, on giving due notice, and that he return an account of sale to the court. On the 3d of June, 1869, he reported to the court that on the first Tuesday in April, 1869, he had sold the certificate, as the property of the estate, to J. C. Kerby, the highest and best bidder, for 7 1/2 cents per acre, making, for the 1,476 acres, $110.70, which he stated he be lieved to be a fair price, under the circumstances connected with the title; and he recommended a confirmation of the sale. Thereupon, on the same day, the court made an order approving and confirming the sale, and directing the administrator to divest title out of the former owner, and to vest it in the purchaser, after his compliance with the terms of sale. In October, 1871, Johns, as administrator, presented to the county court of Travis county his account of debits and credits, showing, among other things, the receipt of the $110.70 for the 'sale of one-third league cert. doubtful title,' and a balance on hand, belonging to the estate, of $11.38 in United States currency, and representing 'that all the property of the said estate of James Park, except the land certificate which was found by the administrator, has been disposed of by the last will of the deceased,' and asking to be discharged. No action appears to have been had by the court in regard to this account or to a discharge. Kerby, the pur- chaser, afterwards located the certificarte on the three tracts of land above mentioned. On August 28, 1882, an amended and supplemental bill was filed by the plaintiffs, adding as defendants James P. Hanner, the Tennessee executor, Robert Smith, Thomas D. Johns, W. B. Blalock, and A. J. P. Johnson. The gravamen of the two bills was that the proceedings of Clement R. Johns, the Texas administrator, in the probate court of Travis county, by which he obtained the order for the sale of the certificate, and the sale itself, were fraudulent; that Kerby, the purchaser, had knowledge of and participated in the fraud; and that the other defendants, who were in possession of the three tracts of land, claiming title to them under Kerby, bought with notice of the fraud.

Answers to the bill were put in by James P. Hanner, Kerby, Clement R. Johns, Von Rosenberg, Everett, Beaty, the two Moultons, Smith, Blalock, and Johnson. M. C. Moulton having died, the suit was revived against his devisees, legatees, and executor. Thomas D. Johns, and the executor and devisees of M. C. Moulton, subsequently answered the bill. It was set up in the answer of Beaty that the claim of the plaintiffs was barred by the laws of limitation of Texas before the commencement of the suit, and that the demand was stale; and in the answer of M. C. Moulton that the claim of the plaintiffs, if any they ever had, was stale, on account of their laches and gross and inexcusable neglect to make known or assert their claim; and in the answers of Smith and Johnson that the suit was barred by the statutes of limitation of Texas; and in the answer of Clement R. Johns that the claim of the plaintiffs was stale, and barred by reason of laches: and in the answer of Kerby that the pain tiffs' demand was stale, and barred by the law of limitations.

Replications having been filed to the various answers, proofs were taken, and the cause was heard before Mr. Justice Woods, and Judge MCCORMICK, district judge, and on the 10th of February, 1885, a decree was entered dismissing the bill. The opinion of Mr. Justice WOODS is reported in 23 Fed. Rep. 5. He disposed of the case on the following ground, as stated in his opinion: 'Upon the trial of the case, the plaintiffs, conceding that the testator at his death owned no land in Ellis county, or elsewhere in Texas, to which said devise referred, to prevent the devise from being inoperative, and to prove their title to the lands in question, offered evidence tending to show that the testator, when he executed his will, and at the time of his death, believed that the Ewing head-right certificate had been located in Ellis county, making him the owner of the lands covered thereby; that it was the purpose of the testator, shown by his declarations to and conversations with the witnesses, to devise to the plaintiffs the Ewing certificate, if it should turn out that it had not been located; and that he was advised by the lawyer who drew his will that the devise above quoted would be effectual to carry out such purpose. The contention of the plaintiffs was that, if this evidence was admitted, it would show them to be the owners of the Ewing headright certificate under the devise in the will of James Park, and establish their title to the lands located by Kerby under that certificate. It is evident that the title of the plaintiffs to the relief prayed by their bill depends upon the admissibility of this evidence. The defendants object to the testimony. I am of opinion that the objection is well taken,...