Hirshfield v. J.

Decision Date01 January 1875
Citation43 Tex. 155
PartiesHENRY HIRSHFIELD v. J. V. DAVIS, ADM'R.
CourtTexas Supreme Court

OPINION TEXT STARTS HERE

APPEAL from Travis. Tried below before the Hon. J. P. Richardson.

This is an appeal from an order setting aside an administrator's sale.

J. V. Davis, the administrator of S. E. Mosely, applied for and obtained an order from the District Court doing probate business, for the sale of lots 5 and 6 in block 44, in the city of Austin, on the 7th day of February, 1874.

On the 8th of July, 1874, the administrator reported to the court that in compliance with the order of sale he had sold the property to appellant for the sum of $2,900 in gold. But he did not recommend the confirmation of the sale, and asked that it be set aside, with liberty to sell at private sale till October, 1874, and if not sold at private sale he should sell at public sale on the first Tuesday in October. He stated that it would be detrimental to the interests of the estate to confirm said sale, because he was confident of being able to sell it for a much larger sum at private sale, or if he failed in that he thought it would bring much more at public sale about the first of October, 1874. He represented that it was an “unpropitious” time (in July, 1874) to sell, and that he believed when the current crop began to come in he would be able to find an “abundance of purchasers.” He stated that before the order of sale was made, and since he was administrator, he had been offered at private sale $5,000; and since the order of sale was made he had been offered more than was bid, but he did not accept it because he thought it was not enough. He thinks the property worth $4,000 in gold; he thinks he can realize $3,500 in gold for it before October, 1874; that the $2,900 will not be enough to pay all the debts, but he thinks he will realize enough by October if he has an opportunity to re-offer the property for sale.

Appellant filed his motion to have the sale confirmed, etc., averring the regularity and fairness of the sale; that the property sold for its full value, etc., etc.; that the interest on the special liens that would accrue would be more than any additional sum the property would be likely to sell for.

The court heard proof and set the sale aside, and appellant appealed. Witnesses for appellant testified that they knew the value of such property in Austin, and that the property was not worth more than $2,700, $2,800, $2,900, or $3,000; that it sold for its full value.

The administrator then read the portion of the inventory embracing this property to show that they appraised it at $5,000. These were all the material facts proved.

Appellee filed a motion to dismiss the appeal, because made from a discretionary order of the District Court sitting in matters of probate, and because such character of order is not the subject of revision.Walton, Green & Hill, for the motion to dismiss, cited Paschal's Dig., 1327, 5713; Davis v. Stewart, 4 Tex., 225;Yerby v. Hill, 16 Tex., 381;Wells v. Mills, 22 Tex., 304.

Sheeks & Sneed, for appellant.

A review of the cases cited and relied upon by the administrator in the court below we submit will show that none of them apply in this case, and that the reasoning of this court sustains the version of the law taken by us.

In Davis v. Stewart, 4 Tex., 222, this court held that if the probate judge “should believe that the sale was not fairly made, or that it was not made in conformity with law, it would be his duty to set it aside,” &c. There is no question of the kind presented in this case. The court held, also, that the discretion of the probate judge was very great in such matters; but we submit that that discretion was only in regard to matters that were brought within the range of his discretionary powers by the law, and none others. In that case the judge did not say (nor did the record show) why he refused to confirm the sale; and the presumption was that his ruling was not an abuse of his discretionary powers.

In this case the record including the order shows that the order was not made for any reason known to the statute, but was made because the price was deemed by the court in some measure too small.

The case of Yerby v. Hill, 16 Tex., 377, simply affirms the doctrine of Davis v. Stewart. If the sale “is not fairly made it ought to be set aside.” Again we say there is no such question in the case at bar. The other points decided in this case have no bearing upon the point now before this court.

In Wells v. Mills, 22 Tex., 302, the same doctrine is affirmed. This language is held in regard to the probate judge: “He is required to affirm the sale or not, as he may or may not be ‘satisfied of its fairness.’ 'DD' The cases were all decided under the statute as found in article 1327, Paschal's Dig., which seems to have made no distinction between public and private sales, and were all made to turn upon a point that was never presented in this case, i. e., the fairness of the sales.

The new statute makes a distinction between public and private sales, and the court treated this as a private sale under that law. We submit that this was error, and that the case should be reversed, the sale confirmed, and the proper judgment rendered in this court.

MOORE, ASSOCIATE JUSTICE.

The four hundred and twentieth section of the act regulating proceedings in the District Court in matters of probate says, “Any person who may consider himself aggrieved by any decision, order, or judgment of the court, or by any order of the judge thereof, may appeal to the Supreme Court as a matter of right, without bond.” Such appeal, however, will not suspend the decision, order, or judgment, except in the particular cases named, unless bond is given as provided in a subsequent section of the statute, (sec. 424.) This provision authorizing an appeal as a matter of right seems unquestionably sufficiently broad and full to comprehend the order or decree of the court which we are asked by appellant to review and revise. It is true there is little if any difference in the terms in which an appeal is given by this statute to this court from the orders, decrees, and judgments of the District Court, and that by which appeals were authorized in the act of 1848, regulating proceedings in the county court pertaining to estates of deceased persons, from the county court to the District Court. (Paschal's Dig., art. 1385.) Yet it has more than once been strongly intimated by this court...

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11 cases
  • Abrams v. White
    • United States
    • United States State Supreme Court of Idaho
    • November 28, 1905
    ...that if a sale has been for an inadequate price, it was not fairly made, and that for this reason the court may set it aside. (Hirshfield v. David, 43 Tex. 155; Shaw Spencer, 100 Mass. 393, 97 Am. Dec. 107, 1 Am. Rep. 115; Allender v. Riston, 2 Gill & J. (Md.) 86; Pierce v. Holzer, 65 Mich.......
  • Dakota Inv. Co. v. Sullivan
    • United States
    • United States State Supreme Court of North Dakota
    • May 22, 1900
    ...held a final, appealable order. Bank v. Neel, supra; Hammond v. Cailleaud, 111 Cal. 206, 43 Pac. 607;Yerby v. Hill, 16 Tex. 377;Hirshfield v. Davis, 43 Tex. 155. If respondent was in any manner aggrieved by the order of confirmation, his remedy was by an appeal therefrom. Having failed to a......
  • Jirou v. Jirou
    • United States
    • Court of Appeals of Texas
    • March 21, 1910
    ...of the sale or in the proceedings on appeal from the order of confirmation have been uniformly recognized by the courts. Hirschfield v. Davis, 43 Tex. 155; Hardin v. Smith, 49 Tex. 420; James v. Nease, 69 S. W. We are of opinion, however, that the disqualification of a county judge who rend......
  • In re Estate of Stone, 10–13–00285–CV.
    • United States
    • Court of Appeals of Texas
    • October 2, 2014
    ...sale. Id. We review the action of the trial court in either confirming or setting aside a sale for an abuse of discretion. Hirshfield v. Davis, 43 Tex. 155, 161 (1875) ("much weight is due to the large discretion which is unquestionably entrusted to the District Court."). The action of the ......
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