Laughter v. Seela

• Decision Date: 17 March 1883
• Docket Number: Case No. 1468.
• Citation: 59 Tex. 177
• Parties: W. P. LAUGHTER v. JONATHAN A. SEELA.
• Court: Texas Supreme Court

59 Tex. 177

W. P. LAUGHTER

v.JONATHAN A. SEELA.

Case No. 1468.

Supreme Court of Texas.

Mar. 17, 1883.

APPEAL from Jackson. Tried below before the Hon. Wm. H. Burkhart.

The agreed statement of facts is too lengthy for insertion. The suit was brought by Jonathan Seela to recover land in trespass to try title. The defendant set up title under a sheriff's sale and deed. The plaintiff claimed as heir of Jonathan Vess, and his title was admitted to be good unless defendants acquired title under a judgment in a proceeding in partition, execution and sheriff's deed. He showed a decree of the Jonathan Vess league of land of date June 29, 1863, made by the county court having jurisdiction, partitioning the estate between the heirs of Vess and other part owners of the league. The plaintiff, Jonathan J. Seela, was a minor, and entitled as one of the heirs to a distributive portion. He was represented by guardian ad litem. The judgment making partition was shown. It was shown that the interest of Jonathan J. Seela was sold under execution issued February 4, 1867, for the costs in that partition proceeding adjudged against him. “Plaintiff then read in evidence the sheriff's deed, in the usual form of a sheriff's deed; … it recited the judgment on which the execution issued, and the issuance of execution thereon on the 4th of February, 1867, the advertisement of the property for sale, and its sale on March 5, 1867. The deed was dated March 5, 1867, duly acknowledged for record same day, but not recorded until November, 1871. It recited the payment of the amount bid for the property.

The court below, acting on the conclusion that the county court had no power to enter judgment and award execution against the property of Jonathan J. Seela, a minor, decided that the execution and sale were nullities, and rendered judgment for the plaintiff for the land.A. B. Peticolas, for appellant, cited Fowler v. Evans, 26 Tex., 636, 638; Pasch. Dig., 1366; Ansley v. Baker, 14 Tex., 612;Withers v. Patterson, 27 Tex., 492-498;13 Tex., 309;6 Tex., 166;4 Tex., 431.

Francis M. White, for appellee, cited Pasch. Dig., arts. 3783, 3908, 3909, 1315, 1320; Conkrite v. Hart, 10 Tex., 140;Brown v. Christie, 27 Tex., 73;Brown v. Lane, 19 Tex., 208;Howard v. North, 5 Tex., 290;Lubbock v. Vince, Id., 415;Clegg v. Varnell, 18 Tex., 305.

WEST, ASSOCIATE JUSTICE.

The court below held that the sheriff's deed conveying the minor's land was a nullity, and the correctness of this action is the sole matter before us. Questions in this connection have been discussed, as to the validity of the execution by virtue of which the sale was made.

It has been claimed that an execution sued out in 1867 could not lawfully issue, based on a judgment such as the one in evidence, rendered in 1863. Cases have been cited to show that the judgment had become dormant, and that its lien was lost by the failure to issue execution in twelve months from the date of the judgment. Howard v. North, 5 Tex., 290;Conkrite v. Hart, 10 Tex., 140;Lubbock v. Vince, 5 Tex., 415;Shapard v. Bailleul, 3 Tex., 26.

It may be a sufficient answer to this to say that the record does not show affirmatively that there was any failure to issue execution within one year from the date of the judgment. Even if such were the fact, under the laws then in force, it is not certain that the purchaser under a sale made by virtue of such an execution would not be protected. Boggess v. Howard, 40 Tex., 158;Cook v. Brown, 45 Tex., 73;Taylor v. Snow, 47 Tex., 463;Cook v. Sparks, 47 Tex., 28;Ayres v. Duprey, 27 Tex., 593;Carroll v. Carroll, 20 Tex., 731;Shaw v. Ellison, 24 Tex., 197;Sydnor v. Roberts, 13 Tex., 598;Webb v. Mallard, 27 Tex., 82;Hancock v. Metz, 15 Tex., 209;Hawley v. Bullock, 29 Tex., 224;Andrews v. Richardson, 21 Tex., 287. Furthermore, the execution itself is not set out in the record, and the agreed case does not disclose whether it was the first or an alias or a pluries execution.

We must, therefore, in the absence of all evidence to the contrary, presume that the execution was lawfully and regularly issued, and that the levy and sale and sheriff's deed were all in due form. It also appears plainly that the court did not consider the question as to the validity of this execution, but expressly held that the county court had no power whatever or authority to enter a judgment awarding any execution against appellee because he was a minor.

This brings us to the sole question in the case, which is, did the sheriff's deed, under the facts of the case, vest a good title in the purchaser to the land in suit? Can such a sale under execution be upheld as against the rights of the appellee, who was a minor when it was made?

The statute requires in proceedings of this character in the probate court, for the distribution and partition of the estates of deceased persons among the parties entitled to it, that where there are minors, their interests shall be properly represented by a guardian. If such minor has no guardian already appointed, the court should appoint a guardian ad litem, whose duty it is to look after and protect the interest of such minor in the proceedings for partition. Hart. Dig., art. 1206; vol. 1, Pasch. Dig., arts. 1358-1362; also art. 1366. See, also, R. S., art. 2106 et seq.

In Montgomery v. Carlton, 56 Tex., 365, this court held that where there was service on the minor under this statute, even though no guardian ad litem was appointed, such judgment was not void, and was not subject to collateral attack by the minor whose land was sold under it.

The record discloses that in this case a guardian ad litem was appointed. It further appears that the person who represented appellee as such guardian in this proceeding was a suitable person, being his grandmother, Rebecca Seela. She was, or had been in the same year when this judgment in the partition suit was rendered, and probably previous to its date, appointed guardian of the person and estate of the appellee, and performed her duties as such until her death. The exact date of that event is not disclosed, but we may presume that it did not occur before 1866, and probably not later than that date. The evidence also shows that the subject of the costs and expenses of the proceedings for partition were considered and passed upon by the court.

The judgment recites that the amount of the charges made by the commissioners, who were appointed by the court to make the partition in question, was ascertained by the court, and their claim for that amount (stating it) was allowed and approved.

It also appears that the subject of the other costs that had naturally accrued in the case was considered by the court, with all the proper parties to the suit represented before it, including the guardian of the appellee. The entire amount of the bill of costs is not set out in the record, but it is quite evident that these costs were the subject of judicial consideration, and were ascertained, and the proportionate share to be paid by each distributee was determined.

A formal judgment was entered of record requiring their payment, and, in default of such payment, this judgment directed execution to issue, as expressly provided in such cases by statute.

There is no pretense that these costs, justly due from the appellee, were ever in fact paid by his guardian, or in any manner tendered at any time, and the execution under which the property in question was sold was issued in accordance with the judgment, to enforce its collection; the judgment as to costs being expressly made by the statute a charge against the land received by each distributee. The result was, the sale of the land in suit, and its purchase by the appellant's vendor, who now claims title to the land by virtue of the sheriff's deed.

The provision of the probate act of 20th March, 1848, under which the execution was issued, is as follows: “Section 105. All expenses incurred in the partition of estates shall be paid by the parties interested in the partition, each party paying in proportion to the share he may receive. The portion of the estate allotted to each distributee shall be liable to his or her portion of the expenses; and if not paid, the court shall have power to order execution therefor in the name of the persons entitled to the same.” Hart. Dig., art. 1214; 1 vol. Pasch. Dig., art. 1366. See R. S., art. 2133.

This provision of the statute, giving this special lien for costs, existed long before its re-enactment in the probate act of 1848. It was the fortieth section of the probate act of February 5, 1840. Hart. Dig., 1034. It was also subsequently embodied in the probate law of 9th August, 1876 (Gen. Laws of 1876, p. 123), and is now, in substance, a part of our present law on the subject. R. S., art. 2133.

In Fowler v. Evans, 26 Tex., 637, it was alluded to by the court in disposing of that case. It has never, however, as to the matter now before us, we believe, yet received judicial interpretation.

It is contended that, in so far as this section of the probate act authorizes the summary sale for cash, under execution, of the real estate of an infant, it is unreasonable and wholly inconsistent with the laws then (and now) in force, regulating how claims and debts against the estate of minors are to be paid and adjusted.

It is also urged that the conflict in this respect between this act concerning the estates of deceased persons, and the act regulating the estates of minors, is so great that this provision cannot stand, being in fact irreconcilable with, and plainly repugnant to, the provisions of the act concerning the estates of minors. This being so, the provision in the probate act under consideration, it is argued, must yield to, and be superseded by, the provisions of the other act, treating at large and especially of the estates of minors. This section of the probate act is so broad in its terms that it may hereafter be contended in other cases that may...