Howard v. Bennett

• Decision Date: 01 January 1855
• Citation: 13 Tex. 309
• Parties: PHILIP HOWARD v. STEPHEN BENNETT AND OTHERS.
• Court: Texas Supreme Court

13 Tex. 309

PHILIP HOWARD

v.STEPHEN BENNETT AND OTHERS.

Supreme Court of Texas.

1855.

Appeal from Lavaca. Action of trespass to try title, by appellant against appellees. The land in controversy is situated in the county of Lavaca, and was granted to Benjamin Whitson for his headright, and was at the death of Whitson unimproved. Whitson died at his residence in the county of Jackson, in the year 1844, and his widow Martha Whitson, obtained letters of administration on his estate in the county of Jackson, at the September term of the probate court, 1844. A sale of the personal property belonging to said estate was made and returned at the November term, 1844, which proved to be insufficient to pay the debts. At the January term, 1845, of said court the administratrix petitioned for and obtained an order for the sale of the league of land in controversy for the payment of debts. She subsequently returned that she had not sold the land for the reason that the clerk had failed to furnish her with the order of sale and appointment of appraisers, and the order of sale was revoked. At the April term, 1845, of said court she again petitioned for and obtained an order for the sale of said land for the payment of debts. At the September term, 1845, notice was ordered to be given that at the next term she would file her account for settlement. At the next term, October term 1845, of the court she presented her account, which was “examined and approved by the court and ordered to be recorded.” By which account it appears that she had not sold the land as ordered by the court in April; that she had collected but $61 75-100, the proceeds of the sale of personal property, and had paid but $6 of the debts against the estate, and that the following approved and acknowledged claims against the estate were due and unpaid, to wit: To Clark L. Owen, $341; to John S. Menefee, $108 61; to John Andrews, $216; and to J. P. B. January, $47 50, making in all, with interest, about the sum of twelve hundred dollars.

At the July term, 1848, of said court Martha Whitson was upon the petition of John Andrews, one of the crediters of said estate, after due notice, removed from said administration, for refusing to close said estate and pay the debts.

At the November term, 1848, of said court John Andrews was appointed administrator de bonis non of said Whitson estate. At the January term, 1849, of said court said administrator petitioned for and obtained an order for the sale of said league of land for the payment of the debts due from said estate; and on the 3d day of April, 1849, sold said land under said order, and made a return of said sale on the 24th day of April, 1849. At the April term, 1849, of said court, the return of said sale was examined and approved by the court and title ordered to be made to the purchaser John S. Menefee.

The defendants claim title to said land by regular deeds of conveyance under said Menefee. The plaintiff claimed title to the land by deeds from the widow and two of the children of Benjamin Whitson, dated in April and October, 1853.

The claims against the estate had been presented to the administratrix and allowed within the year, but had not been formally ranked by the judge as acknowledged claims against the estate, but were approved by him under the act of 1848. The petition of Andrews, administrator, for an order of sale, merely stated that there were debts to the amount of eleven or twelve hundred dollars against the estate, and that there was no property except the league of land belonging to the estate.

Plaintiffs asked the court to instruct the jury that all the proceedings of the probate court subsequent to the approval of the account of the administratrix was null and void; which the court refused to do and instructed the jury “that the title showed by defendants is good and valid, and you should find for defendants.” Verdict and judgment for defendants.

G. W. Smith, for appellant. It is contended by the plaintiff that the sale by Andrews to Menefee is absolutely null and void. The law of 1840 gives no specific directions as to the form in which a final settlement and closing of the administration shall be made to appear. In this instance notice of a settlement was given, account rendered and approved, and nothing was done for nearly three years in the succession.

These facts go to show that the probate judge, administrator, and creditors considered the administration at an end and closed. If the administration was closed the succession could not again be opened. The right of property vested in the heirs. (9 Tex., 13.)

There was no order made to pay the creditors in whole or pro rata, but this omission could not affect the finality of the settlement. But there were no funds to pay them, if there had been any established debts. But it will be seen that all the debts referred to were then barred. None of them had been approved or ranked among the acknowledged debts of the succession within the year after the grant of letters. (2 Tex. R., 433; 7 Tex. R., 617.)

That the jurisdiction of the county court is limited, and can only exercise such powers and in the mode prescribed, otherwise their acts will be void, and will confer no rights on any person and may be impeached collaterally. (Finch v. Edwards, 9 Tex., 509.)

To give the court jurisdiction to order the sale by Andrews, the directions in art. 1163 Hart. Dig. should have been pursued.

1st. There should be a petition for order of sale sworn to by applicant.

2d. There should be accompanying it a statement of the debts presented to the administrator for allowance, “specifying” those allowed and those rejected, those sued on and the condition of the suits, so that upon the facts thus presented in the petition the judicial mind could be called into action, “hear and determine” whether there was a “necessity” for the sale as prayed for; and this conclusion could only have been attained by the court from the facts thus presented. Such statement and specification are indispensable to the exercise of the jurisdiction of the court, as that there be a petition for the order of sale. (Finch v. Edwards, 9 Tex. R., 509.)

The doctrine in the case of Lynch v. Baxter and wife, 4 Tex. R., cannot apply to this case. That was decided under the act of 1840, which did not require the statement and specification of debts as is specially required in art. 1163, Hart. Dig.

All the foregoing objections and testimony were stricken from the consideration of the jury by the sweeping and laconic instruction of the court, and plaintiff insists there were errors for which the judgment should be reversed.

J. J. Holt, for appellees. When the court has jurisdiction of the person or subject matter, the judgment is conclusive until reversed. (Sutherland v. De Leon, 1 Tex. R., 250; Forbes v. Wells, 4 Tex. R., 101; Davis v. Stewart, 4 Tex. R., 223.)

A proceeding of a probate court cannot be collaterally impeached. The only objection that can be taken is want of jurisdiction. (Lynch v. Baxter, 4 Tex. R., 431.)

What is void and what is a voidable judgment of a probate court and their effect. (Fisk v. Norvel, 9 Tex. R., 13, and Griffith v. Frazier, New York case there cited.)

The approval of a...