Harris v. Catlin

• Decision Date: 05 March 1880
• Citation: 53 Tex. 1
• Parties: D. HARRIS, ADMINISTRATOR OF ESTATE OF JOHN O. WHITFIELD, v. J. H. CATLIN.
• Court: Texas Supreme Court

53 Tex. 1

D. HARRIS, ADMINISTRATOR OF ESTATE OF JOHN O. WHITFIELD,

v.J. H. CATLIN.

Supreme Court of Texas.

Mar. 5, 1880.

APPEAL from Waller. Tried below before the Hon. W. H. Burkhart.

Suit by Douglass Harris, as administrator of the estate of John O. Whitfield, deceased, against J. H. Catlin and P. H. Swearingen, as administrator of the estate of Sarah S. Kirby, in trespass to try title to about seven hundred acres of land The petition was filed the 14th of April, 1874. In December, 1871, Swearingen disclaimed.

Catlin, in May, 1875, answered by plea of not guilty, and pleaded specially that he was a purchaser at administrator's sale of the estate of Sarah S. Kirby, deceased, on the 3d day of August, 1869, made by virtue of an order of the County Court having jurisdiction; that Sarah S. Kirby and John O. Whitfield, during their life-time, on the 16th day of December, 1856, entered into a written contract^a1 for the sale of the land to her, and that she went into possession of the same under that agreement and continued in possession up to the time of her death, on the 10th day of September, 1862; that her administrators had continued possession up to the date of the sale and purchase by appellee, and set out a copy of the agreement in his answer; that Sarah S. Kirby complied with the terms of the agreement by the payment of the purchase-money, but that he was unable to prove payment, and asked, on account of the lapse of time, that the payment be presumed; ??hat Whitfield died May 10, 1863; that his last will was propated in July following; that the administration of his estate has been uninterrupted up to the present time; that no claim had ever been presented by said Whitfield in his life-time, or by his executor or administrator, against the estate of Sarah S. Kirby, for any portion of the purchase-money for the land, and prayed judgment quieting his title and possession.

Appellant replied and admitted that Sarah S. Kirby went into possession of the land about the time alleged by the defendant, to wit, about the 1st of January, 1857, under the agreement of purchase; that she continued her possession up to the time of her death, at the date named by defendant, and that her administrator continued to possess the same up to the time of his death, which occurred in the year 1865, but denied that possession was adverse to Whitfield or his executor or administrator, and also denied that Sarah S. Kirby or her administrator ever complied with the agreement by paying the purchase-money for the land; that Whitfield died in May, 1863, and that his last will was probated as alleged by defendant; that although Sarah S. Kirby failed to pay the purchasemoney when due, yet the agreement was not revoked or disaffirmed by Whitfield during his life-time; that after the death of Sarah S. Kirby, Jared E. Kirby, her son and business manager, and with whom she had resided for several years next before her death, was appointed administrator of her estate, and that Thomas B. White, who was a son-in-law of Sarah S. Kirby, was the executor of Whitfield's will; that Jared E. Kirby and White did not disaffirm the agreement, but recognized the same as subsisting during their administration of the estate respectively.

Appellant further alleged that on the 24th day of May, 1860, Sarah S. Kirby executed to Whitfield her promissory note for $3,351.56 for a part of the purchase-money for the land, which is still unpaid and in the possession of plaintiff, and produced the same in court; that on the 2d day of December, 1863, White presented that note duly authenticated to Jared E. Kirby for allowance, and that Kirby indorsed a qualified allowance on the same, as follows, viz.: “December 2, 1863. The above claim was this day presented, and I allow the same as a just claim against the estate of Sarah S. Kirby, deceased, to be paid when title is perfected to said estate for seven hundred and odd acres of land. E. Brazos, Austin county. Jared E. Kirby, administrator,” &c.

Upon the claim also appeared the following indorsement, viz.: “Examined, approved, and ordered to be paid in due course of administration. February 28. J. H. Catlin, chief justice, Austin county.”

Appellant further alleged that in the year 1865 J. E. Kirby died, and soon thereafter P. H. Swearingen was appointed administrator de bonis non of the estate of Sarah S. Kirby, deceased; that in the year 1866 all the buildings and fencing were removed from the land and the possession thereof entirely abandoned and never resumed until sold to defendant; that Thomas B. White resigned the executorship, and appellant was thereafter appointed administrator of Whitfield's estate; that the estate of Sarah S. Kirby turned out to be hopelessly insolvent; that Swearingen refused to pay the claim, and applied to the County Court for an order to sell the land as the property of his intestate's estate; that about the same time appellant brought suit against Swearingen for the land;^a1 that during the pendency of the suit the order of sale was granted and the land sold and purchased by appellee at the price of ten cents per acre; that at and before that sale appellee was notified of the claim of Whitfield's estate to said land, and was charged with full notice, actual and constructive, of the condition of the title.

Plaintiff also relinquished all claim against the estate of Sarah S. Kirby, if any he ever acquired by reason of the conditional allowance of the claim, but offered to make a conveyance to defendant of the land if he would pay the purchasemoney due.

On the 14th of January, 1878, the heirs of John O. Whitfield, deceased, were made parties plaintiff on their own application, and adopted the pleadings of their co-plaintiff.

On the 10th day of April, 1879, the appellee filed general and special exceptions to plaintiff's pleadings, upon the ground chiefly that the plaintiff had elected to have the claim for the purchase-money allowed and approved as a claim against the estate of Sarah S. Kirby, thereby making himself a judgment creditor of her estate without asserting a lien on the land, and that he was thereby estopped from maintaining a suit for the land.

The defendant's exceptions were sustained and the suit dismissed by the court.

The only assignment of error was, that the court erred in sustaining the defendant's exception to plaintiff's cause of action and dismissing the suit.

C. A. Harris and B. F. Elliott, for appellant.

I. The title to the land did not pass to Mrs. Kirby. At most, she only acquired an equity, and appellee did not acquire by his purchase any greater right or title than the estate of Mrs. Kirby possessed at the time of the administrator's sale, viz., the right to enforce the agreement upon payment of the purchase-money. (Browning v. Estes, 3 Tex., 462;Estes v. Browning, 11 Tex., 237; The Howards v. Davis, 6 Tex., 182;Dunlap v. Wright, 11 Tex., 597;Herrington v. Williams, 31 Tex., 462.)

II. In an executory contract for the sale of land, the vendor is not bound to enforce the vendor's lien on the land, but may recover the land, if not paid for, by virtue of his superior title; and the fact that Mrs. Kirby had died, and an administration was opened on her estate, could not necessitate the enforcement of the lien by Whitfield or his executor. All that could be required of him was to put the claim in such authentic form as the law required, and thereby afford the administrator of Mrs. Kirby's estate an opportunity to pay it and secure the title to the land. (Robertson's Administratrix v. Paul, 16 Tex., 472.)

III. At the time of the agreement to sell the land, Whitfield elected to take the purchase-money and convey the land, which was binding on him as long as the contract was recognized as in force, and the default of Mrs. Kirby to pay the purchasemoney at maturity did not put an end to the agreement, or require Whitfield or his executor to make a final election to pursue the money or the land. (Hild v. Linne, 45 Tex., 477;Walker v. Emerson, 20 Tex., 711.)

IV. The agreement was a binding obligation from the time it was entered into, as long as it was not affirmed; and no effort on the part of Whitfield's executor to enforce payment of the purchase-money would estop him from afterwards disaffirming the contract and recovering the land...