Hurley v. Barnard

• Decision Date: 01 January 1877
• Citation: Hurley v. Barnard, 48 Tex. 83 (Tex. 1877)
• Parties: CAVE J. HURLEY v. E. H. BARNARD ET AL.
• Court: Texas Supreme Court

48 Tex. 83

CAVE J. HURLEY

v.E. H. BARNARD ET AL.

Supreme Court of Texas.

1877.

APPEAL from Hopkins. Tried below before the Hon. Green J. Clark.

Cave J. Hurley, as the heir of Thomas N. Hurley, deceased, brought suit at the December Term, 1872, of the District Court of Hopkins county, against E. H. Barnard and others, to recover a tract of 307 acres of land. The defendant claimed title under a deed from Roane, the administrator of the estate of T. N. Hurley, made, as was claimed, in pursuance of an order of the Probate Court of Hopkins county, at the February Term, 1857. The replication of plaintiff alleged that the deed conveyed no title, because,--First, the pretended order of sale was made to provide for the payment of a note not then due. Second, that if the order of sale was made, it was to enforce a lien; and there was no application, in writing, to the chief justice of the county, for an order to sell the land, nor was there citation, requiring the administrator to appear and answer, as required, to give the court jurisdiction. Third, the order of sale was null and void, on account of the appearance of the administrator, and his waiver of citation and copy of notice. Fourth, the application was not made by any creditor of the estate. Fifth, the order did not describe the land, and the administrator made no return of sale of the land.

On the trial, exceptions were urged to the introduction of the proceedings of the Probate Court, covering the points above indicated. That record disclosed that Roane, the administrator, appeared in open court, and waived citation and a copy of notice; that an order was made, which recited that a mortgage had been executed “on the real estate of T. N. Hurley,” to secure the payment of two notes; that there was no real estate belonging to T. N. Hurley at his death, except the land sued for; that the administrator was required, by order of the Probate Court, to sell “the real estate of the said Hurley, deceased,” and that the “sale of land of said estate” was confirmed by the court at the July Term, A. D. 1857. The transcript contains the copy of a mortgage executed to secure the payment of the note bearing date July 5, 1856, which describes “307 acres of land, part of the headright of Mary Ann Bolin, situate in the county of Hopkins, about one mile east of the town of Sulphur Springs.” Judgment was rendered for defendants, from which C. J. Hurley appealed.

Payne & Putman, for appellant.

I. It will be conceded that the Probate Court is a court of special and limited jurisdiction. (Easley v. McClinton, 33 Tex., 295.)

In this case, it is insisted that the Probate Court of Hopkins county had no jurisdiction to make the order to sell the real estate of Thomas Hurley. That the said order did not operate upon the land, because its jurisdiction had not been called into operation in the mode prescribed by the statute.

This question of jurisdiction of Probate Courts to order the sale of land, under the statute of 1846, seems to have been well matured by the Supreme Court in Finch v. Edmonson, 9 Tex., 504.

What right had the administrator to appear in “open court,” without ““citation,” upon the “written application” of a creditor, and ask the court to make an order to sell the land of deceased? And this brings us back to the question,--Did this give the court jurisdiction to make the order?

Was it not his sworn duty rather, after the creditor had filed his written application, and he was cited to appear, to scrutinize the claim, and defend it, if necessary? But no; the court permitted all the guards thrown around the estate of a dead man by the law, for the protection of creditors and heirs, to be thrown to the winds, by this accommodating administrator.

In the case of Miller v. Miller et al., 10 Tex., 333, the court says: “The order of sale was made on the petition of the administrator, when, by the act of 1843, before recited, it could only be legally made (and the Probate Court could have obtained jurisdiction only) on the petition of a creditor, heir, or legatee. Hence, we conclude that the order and the sale were absolutely void, and gave no right to a purchaser under it.” (Harris v. Graves, 26 Tex., 577;Littlefield v. Tinsley, 26 Tex., 353;Morris v. Halbert, 36 Tex., 19;Poor v. Boyce, 12 Tex., 440;Easley v. McClinton, 33 Tex., 288.)

II. Had the Probate Court jurisdiction to order a sale of land to pay a debt not due, under any law?

Again, what land was ordered to be sold? There was no petition, wherein the land was described. The order of court does not describe any. The first time any land is described, is in the deed from the administrator to the purchaser, Musgrove. The deed must have followed the order of court, otherwise it certainly would be a nullity, and pass no title. (Murray v. Land, 27 Tex., 89;Castro v. Illies, 13 Tex., 229; Paschal's Dig., art. 1321.) Paschal's Dig., art. 1327, provides that when a sale of property is ordered, and the sale made, the administrator shall return to the court an account thereof. “Such account of sale shall be in writing; shall specify the property sold; the name of the purchaser; the price for which it was sold, and the terms of sale; and shall be sworn to and subscribed.” Then it is the duty of the chief justice to inquire into the manner in which such sale was made. If satisfied, he shall confirm the sale, and order a conveyance to be made to the purchaser. But the chief justice had no power to approve the sale and order a conveyance, until the administrator had made a return under oath, as required by law. (Paschal's Dig., art. 1327.)

The pretended order confirming the sale of the land, tested by the statute, is no confirmation. It describes no land,--suffice it to say, it is not intelligible,--and conveys no legal idea. This is not all. According to the decisions of this court on the subject of jurisdiction, the administrator, Roane, had no right to...