Hudson v. Jurnigan

• Decision Date: 01 January 1873
• Citation: Hudson v. Jurnigan, 39 Tex. 579 (Tex. 1873)
• Parties: J. B. HUDSON ET AL. v. J. H. JURNIGAN ET AL.
• Court: Texas Supreme Court

39 Tex. 579

J. B. HUDSON ET AL.

v.J. H. JURNIGAN ET AL.

Supreme Court of Texas.

1873.

1. One-third of a land certificate was sold in 1842, by order of a probate court, to defray the expense of surveying and patenting the other two-thirds. The heirs who had gone into possession of the land thus secured brought suit in 1871 against the purchasers of the land covered by the one-third of the certificate thus sold, and who had been in possession for thirteen years. Held, that the claim of the heirs was stale, and they were estopped from attacking the jurisdiction of the probate court which made the order of sale.

2. There is no restriction on the equitable jurisdiction of probate courts over minors and the estates of deceased persons except that imposed by positive statute.

3. Statutes authorizing executors and administrators to sell land should be liberally construed.

4. Probate courts have a jurisdiction in all cases over the estates of intestates, and any one acting on the faith of the judicial acts of such courts will be protected.

APPEAL from Tarrant. Tried below before the Hon. Hardin Hart.

The opinion states the facts.

J. W. Ferris, for appellants, contended (1) that Lee's heirs having received two-thirds of the certificate located and patented by the administrator through the sale of the remaining one-third, and having appropriated the same to their own use, were estopped from setting up any claim to the land in controversy, after the lapse of twenty-nine years, and valuable interests had accrued under said sale, of which they were presumed to have had notice, citing Bartlett v. Cocke, 15 Tex. 479; and (2) that the court erred in refusing to permit Hudson et al. to prove that they were possessors in good faith, citing Pas. Dig. art. 5800; Dorn v. Dunham, 24 Tex. 379;Burdett v. Silsbee, 15 Tex. 620.

Smith & Jarvis, for appellees.

1. In matters of probate the civil code of Louisiana was, at the time of granting letters of administration, in force in Texas, and if the administration was not prolonged by the court, and a new bond given, the appointment would cease to confer any authority at the expiration of one year from the date of the letters. Flores v. Howth, 5 Tex. 331;Boyle v. Forbes, 9 Tex. 40;Easterling v. Blythe, 7 Tex. 213;Jones v. Perkins, 8 Tex. 339;Chandler v. Hudson, 11 Tex. 37;Murphy v. Menard, 14 Tex. 66.

It is claimed that McClure was appointed administrator de bonis non in November, 1840, more than two years and six months after the grants of letters to Andrews. There had been no order prolonging the administration, nor new bond given as required (Civil Code, arts. 1197, 1199), and we insist the presumption is conclusive that the estate was fully administered and vested in the heirs, unless there did exist, in fact, some necessity for the appointment of an administrator de bonis non. There did exist no necessity, nor was any shown therefor. 9 Tex. 40. The succession was not vacant, as was alleged in McClure's petition, but the estate had in fact--as was the presumption of law-- vested in the heirs. There were no debts to be collected nor creditors to be satisfied. But it is insisted that under the act of fifth of February, 1840 (Hartley, art. 1042), the judges of probate were required to cause all executors, administrators, etc., to whom letters had been granted twelve months previous to the passage of the act, to appear before them, account for their proceedings, and settle. This requirement could only be predicated of a valid and subsisting administration, and cannot be held to confer on the courts authority to make a void administration valid, or to re-open one that was already closed by granting letters of administration de bonis non. It could not apply to administration granted more than twelve months prior to the passage of the law, which had not, at the expiration of the first year, been extended by the judge granting a prolongation and requiring a new bond.

It could not apply to a case like the present where letters had been granted two years and six months previous, and which could only be of force by having been twice prolonged by the judge, and filing new bond each time. It is not pretended that anything of the sort was ever done in this estate. In the case of Easterling v. Blythe this court says of an administration pending in 1838: “The period of his administration was fixed by law at one year, and in the absence of any evidence to the contrary, it would be presumed to have terminated at the end of that period. The legal presumption therefore is, that the administration had long since been closed, the liabilities of the estate extinguished, and the title or estate of the ancestor in the land, whatever it may have been, fully and absolutely vested in the heirs.” 7 Tex. 213;11 Tex. 37.

The act of the court revoking the letters of Andrews was needless, because they had long since expired by the limitation of law. Murphy v. Menard, 14 Tex. 66.

McClure was a land locator at the time, as he testifies; he thought he had found a “vacant succession of the probable value of $1,500, as he was informed,” in the shape of a league and labor land certificate. He was not a creditor, nor did he know of any creditors of the estate; there being none, the estate had fully vested in the heirs, the administration must be regarded as closed, and no legal administrator de bonis non could be required, and ought not to have been granted, and his appointment gave him no right of action, but was an absolute nullity. Id. 67.

2. If the court properly exercised its authority in granting letters de bonis non to McClure, was its jurisdiction rightly invoked in ordering the sale of the certificate? The power of a court to do a thing, and the rightful exercise of that power, are very different. The probate court had power to grant letters of administration on the estates of deceased persons, but for their orders and decrees to be binding the court must legally and rightfully exercise that power. Just so with courts ordering the sale of the property of decedents' estates--the authority to order the sale must be legally exercised. The powers of our county courts in respect to estates of decedents are all conferred by statute, and whatever the statute authorizes the court to do it may rightfully do. 27 Tex. 495. The converse of this is true, that so far as they assume to do what the statute does not authorize, their orders are nullities. Under the act of February 5, 1840, in force when McClure claimed to have made this sale, the probate court could order the sale of land on two grounds, and only two:

1. Under the 29th section (Hart. Dig. art. 1023), to pay debts.

2. Under the 42d section of said act (Hart. Dig. art. 1036), for partition under the provisions of said section.

But it does not follow because the statute authorizes the court to order the sale of land for these causes, that all sales of land by order of the court are authorized. The county courts were not clothed with a general power to order the sale of land or land certificates for any other cause. And if the court orders a sale of land where the circumstances do not exist which under the law authorizes it to do so, it acts in doing so without jurisdiction, or in other words without authority. Withers v. Patterson, 27 Tex. 495, 501.

In the case at bar it appears from the record that there were no debts against the estate, no costs of administration were due from the estate, when McClure claims to have been appointed administrator de bonis non. The record showed none. He and Andrews both testified virtually that there were none. The costs incurred and the fees claimed by McClure were incurred in his own wrong, and were not debts against the estate of Abner Lee. Then virtually the only cause urged by McClure for an order to sell a portion of the certificate was to raise money to pay for locating and patenting the balance of it. This was the cause assigned; the matter of costs and fees was only incidental to this. Did the statute authorize the county court to order a sale for that purpose? We think clearly not.

But it is contended by appellants' counsel that the administrator's sale cannot be collaterally attacked; to which we cannot better reply than to refer to the language of Judge Bell in 27 Tex. 501.

But it is insisted by counsel for appellants that the appellees are estopped from questioning the legality of McClure's administration, because the land sued for was acquired through Andrews' administration on the same estate. We fail to see the potency of the argument.

Because Andrews was appointed administrator of Abner Lee, deceased, and procured the issuance of the certificate for the benefit of the heirs, settled all costs of his administration, and left no debts or claims unsettled against the estate, we are unable to see why the heirs are thereby estopped from denying the right or authority of McClure, either with or without sanction of a court, to interpose and sell the certificate, when there was no law authorizing him to do so. The facts in this case are different from those in the case of Giddings v. Steele, 28 Tex. 733, upon which counsel seem to rely. In that case the certificate had been condemned, and but for the action of the administrator, at a very heavy cost, the certificate would have been lost, and when established it was sold to pay debts.

It is also insisted that they are estopped from claiming the land in controversy because they have taken possession and held the two-thirds league in Collin county. To this we have only to...