Mccoy's Heirs v. Another
| Decision Date | 01 January 1853 |
| Parties | MCCOY'S HEIRS v. CRAWFORD AND ANOTHER. |
| Court | Texas Supreme Court |
The mode of obtaining personal service of process upon the defendant in 1839 was by delivering to him a copy of the writ and petition; and, therefore, where the sheriff's return was “served by reading the within,” it was held that all the subsequent proceedings, including a sale under execution, were null, notwithstanding that the defendant was represented by a curator ad litem.
No person is bound by any decree or judgment to which he has not become a party in some of the modes known to law.
Where an administrator purchases land at a judicial sale made to satisfy a claim in favor of the estate which he represents, and causes the purchase-money to be credited on the claim, the purchase inures to the benefit of the estate, and, after the close of the administration, the heirs may recover the land, notwithstanding the administrator may have accounted for the purchase-money in the final settlement of his accounts, and sold the land to a third person having notice of the facts.
It seems that the objection of nullity, when apparent on the record, may be taken at any time and by any person.
Appeal from Gonzales. The appellants brought suit against the appellees on the 17th of February, 1846, to establish their title to a third of a league of land granted to their ancestor. The ancestor, Samuel McCoy, in his lifetime sold the land to one Grigsby for $1,111, of which Grigsby, at the time, paid $239.50, and gave his promissory notes for the balance, payable when McCoy and his wife should make to him a title, they, at the same time, giving their bond to make title upon payment of the notes.
The petition set forth that the administrator of McCoy recovered judgment against Grigsby on the notes given by him for the purchase-money; that the defendant, Crawford, afterwards intermarried with the widow of McCoy, and was appointed administrator de bonis non of the estate; that he and his wife executed to Grigsby a conveyance of the land, but without the authority of an order or decree of any court of competent jurisdiction, and that the conveyance was ineffectual and void; that Crawford, while acting as administrator, took out execution on the judgment in favor of the estate against Grigsby; caused the land to be levied on and sold as the property of Grigsby to satisfy the judgment, and became himself the purchaser, taking the deed in his own name, but pretending to purchase for the benefit of the heirs of McCoy, the now plaintiffs; that he paid nothing to the estate, and that whatever he may have pretended to pay was the money of the plaintiffs; and that he afterwards sold the land to the defendant, Threadgill, who purchased with a knowledge of the facts.
The prayer of the petition was that the levy and sale of the land be annulled; that the defendants be decreed to convey to the plaintiffs; and for general relief.
The answer to Crawford admitted the contract of sale between McCoy and Grigsby; the conveyance by himself and wife; the levy and sale to satisfy the judgment against Grigsby, and that he (Crawford) was the purchaser, but said he had fully accounted to the estate for the amount of the purchase-money. The defendant, Threadgill, admitted his purchase from Crawford; averred that it was made in good faith for a valuable consideration, and denied that he knew of any defect in the title of Crawford.
The plaintiff gave in evidence the record of the proceedings in the suit by the administrators of McCoy against Grigsby for the residue of the purchase-money contracted to be paid for the land, from which it appeared that the suit was instituted in July, 1839, in Gonzales county; citation issued to Jefferson county, where the defendant resided, on which the sheriff of that county made the following return: “Served by reading the within, August 2d, 1839.”” At the Fall Term thereafter, the defendant not having appeared, the court appointed a ““ curator ad litem,” who pleaded to the jurisdiction. The court overruled the objection, and gave judgment that the contract between the intestate and Grigsby be specifically performed; that the plaintiffs recover of the defendant the residue of the purchase-money, and that they execute to him a conveyance of the land. It was in...
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...273 S.W. 900, writ of error refused; Caldwell v. Bryan's Ex'r, 20 Tex.Civ.App. 168, 49 S.W. 240, 242, no writ; McCoy's Heirs v. Crawford, 9 Tex. 353, at page 357; Leakey v. Gunter, 25 Tex. 400, 403; Byrnes et al. v. Morris et al., 53 Tex. 213, at page 218; Schultz v. Scott, Tex.Civ.App., 21......
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