Jackson v. Houston

• Decision Date: 17 May 1892
• Citation: Jackson v. Houston, 19 S.W. 799, 84 Tex. 622 (Tex. 1892)
• Parties: JACKSON <I>et al.</I> v. HOUSTON <I>et al.</I>
• Court: Texas Supreme Court

19 S.W. 799

JACKSON et al. v. HOUSTON et al.

Supreme Court of Texas.

May 17, 1892.

Commissioner's decision. Section A. Appeal from district court, Wilson county; GEORGE McCORMICK, Judge.

Action by M. A. Jackson and another against J. D. Houston and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

B. F. Ballard, for appellants. L. H. Browne, for appellees.

HOBBY, P. J.

This suit is one of trespass to try title to 640 acres of land described in the petition. It was brought by appellant M. A. Jackson on June 6, 1887, who claimed as the only heir and grandchild of Wright N. Kirk, who died intestate, in Fort Bend county, in 1842. It was alleged that one John Patton administered on his estate in the county in 1849; that he obtained an order to sell the land to pay the debts of the estate; that he reported the sale of said land at the March term, 1849, which was confirmed by the court; that he subsequently, on April 5, 1849, executed a deed to one J. N. Massey, the purchaser, for $96, who on the same day reconveyed by quitclaim deed the land to Patton for the same consideration. It is also alleged that the administrator did not make the application for the sale of the land in compliance with law;¹ that there was no statement of expenses of administration or claims; that there were no debts due by said estate, and no necessity for the sale; that it was to be made on a credit of 12 months, with personal security, whereas said sale was made without such security, and without consideration. It was further charged that the sale was fraudulently made by the administrator with the intention that he should become the purchaser, and that the defendants had constructive notice of the fact that said sale was fraudulently made. Several special exceptions and pleas in bar were embraced in the answer, but it is not necessary to the disposition of the case that they should be considered. The question before us arises upon the ruling of the court below in sustaining the third special exception, which is as follows: "(3) From the said averments on the face of said petition it appears that the said administration sale to Massey was made 39 years before the filing of this suit and before the filing of said petition, and in said petition no cause for the long delay in bringing this action to set aside said sale is shown; and these defendants here interpose by special exception the statute of limitations of ten years of this state, and also that the demand to have said deed canceled after so long a time is stale, and is a stale demand, and these defenses they urge in bar," etc. In reply, plaintiff alleged that for 10 years prior to the filing of this suit she had been a married woman; that she married in October, 1877; that at the time of the administration on the estate of Wright Kirk, Fredonia Kirk was his heir and a minor, and so continued until 1861, when she married, and in 1866 she died; that plaintiff inherited her title from said Fredonia Kirk, who was her mother; that plaintiff was born in 1862, and that her minority and coverture has prevented the application of the doctrine of stale demand, etc. The ruling of the court sustaining the above exception is assigned as error. Although it is evident from the allegations in the petition that the sale of the land was made by order of a court having the jurisdiction and power to make such order, it is claimed that because there was no statement of the expenses of administration, and no debts against the estate, and the sale was not made on a credit of 12 months, with personal security, etc., and the administrator was indirectly the purchaser at his own sale, therefore it was void. The fact that the administrator failed to accompany the application for the sale with a statement of the expenses and claims does not render the sale void. The statutory requirements which it is alleged in the petition were not complied with in making the sale have been held to be directory, (Kleinecke v. Woodward, 42 Tex. 314;) and the failure to conform to them has not been considered heretofore sufficient to invalidate a sale made by an administrator under the authority of the probate court having jurisdiction of the estate. In the case of Fisher v. Wood, 65 Tex. 204, it was held that, although an order to sell and an order of confirmation may have been obtained fraudulently, such sale would stand until set aside by a proper proceeding instituted for that purpose.

The question of the effect of fraud in avoiding an administration sale of property at the suit of an heir was discussed in Murchison v. White, 54 Tex. 85. In that case it was held that a suit by the heirs to set aside such a sale and declaring it void on the ground of fraud must...