Houston v. Killough

• Decision Date: 20 March 1891
• Citation: Houston v. Killough, 16 S.W. 56, 80 Tex. 296 (Tex. 1891)
• Parties: HOUSTON <I>et al.</I> v. KILLOUGH <I>et al.</I>
• Court: Texas Supreme Court

16 S.W. 56

HOUSTON et al. v. KILLOUGH et al.

Supreme Court of Texas.

March 20, 1891.

Appeal from district court, Washington county.

Leake, Shepard & Miller and Bassett, Muse & Muse, for appellants. J. T. Swearingen, for appellees.

STAYTON, C. J.

On May 7, 1831, David C. Clark obtained a grant of one league of land as a colonist, and on October 8, 1833, he by an instrument in writing conveyed one-fourth of the land to Benjamin McDaniel, and therein bound himself to give such further assurance of title as might be necessary so soon as the laws would permit him to do so. At the time the grant was applied for David Clark was a married man, and appellees brought this action as his heirs and as residuary devisees of his wife against appellants, who claim under McDaniel, to recover the land to which the conveyance made by Clark relates. Daniel Clark was killed early in the year 1837, and administration on his estate was had by his widow in the probate court for Washington county. During the year 1837 application was made to the probate court for specific performance of the contract of October 8, 1833, and it appears from the findings of the court that between December 31, 1838, and February 28, 1842, that court directed a conveyance to be made by the administratrix, and that in conformity with this order a deed was executed by her. These findings were upon evidence circumstantial in nature, it appearing that the records of the probate court for the period intervening the dates named had been lost or destroyed, and there being no direct evidence that a deed was executed by the administratrix. The court below correctly held that the conveyance from Clark to McDaniel was prohibited by law, and further held that no equities were shown to defeat the plaintiffs' legal title, and therefore entered judgment in their favor. It is now insisted the judgment should have been for the defendants on the findings that the probate court decreed specific performance, in pursuance of which a deed was made by the administratrix. Under these findings a judgment should have been entered for the defendants if the probate court had jurisdiction to decree specific performance of the contract, for in such case no inquiry in this action could now be made as to the propriety of such a decree. Had that court jurisdiction to make such a decree at the time it is found to have been made? The constitution of the republic simply provided that there should be a county court in each county, but did not define their jurisdiction. Const. art. 4, § 10. The act of December 20, 1836, conferred on county courts power to probate wills, grant letters of administration, appoint guardians, and to examine and settle the accounts of executors, administrators, and guardians, and "full jurisdiction of all testamentary and other matters appertaining to a probate court within their respective counties. Sayles, Early Laws, art. 263. The act of February 5, 1840, more fully regulated the duties of the probate courts and prescribed their mode of procedure than did the former law, but neither of them expressly conferred the power to decree and enforce specific performance of contracts to convey land made by a person whose estate might be in course of administration. Sayles, Early Laws, art. 736. The act of February 2, 1844, seems to have been the first act that conferred such a power. Sayles, Early Laws, art. 1341. This power, however, seems to have been conferred on probate courts only in cases in which application was made by an executor, administrator, or guardian when it was made to appear upon "satisfactory evidence that a compliance with the requirements of said bond, obligation, or contract would be beneficial to the interest of said estate." The fourth and fifth sections of that act provide that actions brought by the holders of such obligations against a deceased person, or by the executors or administrators of the estate of a deceased person, should be brought in the district courts. These are believed to be all the laws in force during the period in which transpired the facts on which appellants base their right to recover on a decree directing specific performance of the contract between Clark and McDaniel, other than decree No. 81, of January 22, 1836, which provided that all proceedings relative to successions and matters of probate should be regulated and governed agreeably to the principles and laws in similar cases in the state of Louisiana. Sayles, Early Laws, art. 212. It seems to be contended that the decree last referred to conferred such a power, and that it was exercised by the primary judges. If it could be held that this decree was intended to confer on the courts exercising probate powers such jurisdiction as like courts exercised in Louisiana, and was not intended solely to regulate the procedure, and that it was in force at date decree may have been made, then this would not benefit appellants' case, for it is evident that such courts in Louisiana did not have power to enforce specific performance of contracts to convey land made by a deceased person. Rhodes v. Rhodes, 3 La. 308; O'Donogan v. Knox, 11 La. 388. There are many cases in which lands were sold under judgments rendered by judges of first instance, even when a defendant was represented by a curator, but this was under the general jurisdiction of the courts over which those judges presided, and not under the powers exercised by them in probate proceedings; and we are unaware of any case in which it was held that primary judges, in the exercise of such probate jurisdiction as was conferred upon them, had power to decree specific performance of an agreement to convey land. In Jones v. Huff, 36 Tex. 683, it was held that in 1837 probate courts had...