McDonough v. Cross

• Decision Date: 01 January 1874
• Citation: 40 Tex. 251
• Parties: A. H. MCDONOUGH v. MARY AND P. H. CROSS
• Court: Texas Supreme Court

40 Tex. 251

A. H. MCDONOUGH

v.MARY AND P. H. CROSS

Supreme Court of Texas.

1874.

1. An executor, with power to administer without control of the probate court, for the purpose of partition, and with the consent of the devisees, sold a tract of land on a credit of twelve months, giving a bond for title upon the payment of the purchase money, the purchaser giving separate notes for the proportional amount of the purchase money to each devisee interested in the land. Upon maturity of the notes one of the holders obtained a judgment and order of sale against the purchaser, and under same purchased the entire tract. Held, that such purchaser took only such title as was held by the judgment debtor; and the purchase money due the other devisees not having been paid, such purchaser took only an interest in the land proportionate to that the note upon which judgment was rendered bore to the entire purchase money.

2. A judgment against an executor with power to administer without control of the courts of probate binds only such assets as are in his hands, and a sale under such judgment of land which had been partitioned among the heirs prior to the suit upon which judgment was rendered was void and passed no title.

ON REHEARING.

3. It seems a reasonable if not necessary construction of wills authorizing executors to administer and settle estates independently of supervision and control of the probate jurisdiction of the courts, and where there are no terms of restriction upon their authority in the will, that they may do whatever is necessary for the full and complete settlement of the estate which they might do under the authority and order of the court if charged with the administration subject to its control of the will.

4. Such executors may sell property for the payment of debts of the estate, or the discharge of any other trust directly or exclusively committed to them by the will; but doubtful whether such executors can make partition of an estate, or sell land to effect a partition.

5. Such executors may determine when to surrender the estate to the heirs or devisees, free from any claim thereto for the purpose of administration; and upon such delivery of the estate to the devisees it ceases to be assets in the hands of the executors, but passes to the devisees subject to the debts of the estate.

6. Under a judgment against such executors subsequent to the delivery of the estate to the devisees, the estate so delivered is not subject to execution, and a sale under such judgment, of such estate, would pass no title.

7. The delivery of property to the devisees, or the sale made by the executor, with consent and approval of all the devisees, for purpose of distribution, passed the estate from the hands of such executor, and thereafter such estate was not assets, and the sale under execution against the executor was void.

8. Neither the devisees, nor a purchaser from them, or the executor, are chargeable with a knowledge of the debts of the estate, or the means in the hands of the executor for their payment.

9. In the absence of anything from which the contrary inference should be drawn, it is presumed that an executor assuming the trust of administering without control of the probate court does not surrender it until he has discharged all the duties which he knows are imposed on him; the judgment, therefore, against the executor would be valid, and bind any assets in his hands.

10. The purchaser at executor's sale, under such valid judgment, of land which had passed to the possession of the devisees, and so taking no title, having discharged such valid judgment, is entitled to be subrogated to the rights of the creditor, and pursue the assets in the hands of the devisees.

11. The vendor's lien is an implied lien, a mere equity, incident to the contract for the sale of the land, if the purchase money be not secured otherwise; but if an express lien is retained, or other security taken, unless it clearly appear that the implied lien is also retained, it is to be taken as waived.

12. In case of an express lien or mortgage to secure the payment of different creditors, whose debts are due at the same time and are not by the mortgage or contract giving the lien placed on a different footing, neither of such creditors is entitled to a priority over the others, and in general all of such creditors are necessary parties in a suit to enforce the lien.

13. While, as a general rule, the diligent creditor may have advantage over others of equal standing otherwise, still the vendor's lien for the purchase money due one of several vendors for his undivided interest in the land sold can only attach to his own interest in the land, nor can it be enforced against the share of any of the other tenants in common holding a like security.

14. The holder of the one of several notes given to the several devisees for the share to each respectively (title bond only having been executed to the vendee), having taken possession, after maturity of the notes, of part of the land, could not be evicted by one of the other tenants in common, nor by one holding under proceedings to enforce the payment of one of the other notes against the land.

15. In an action by one claiming the whole tract of land, under proceedings by one of several devisees holding such notes, the other devisees, or those holding such notes given to such devisees, could properly intervene and set up their rights.

APPEAL from Rusk. Tried below before the Hon. J. B. Williamson.

W. H. Morris, for appellant. The will, by its terms, not coming within the jurisdiction of the county court for administration, leaves W. J. Smith, the executor, a trustee merely to execute its powers outside of the court and under the law regulating ordinary trusts. Langley v. Harris, 23 Tex. 564.

It is true that the legal title by the death of B. H. Smith was cast on his legatees. It is equally true that the title thus vested is subject to the trust imposed by the will. The property descends to the legatees subject to the execution of the powers of the will. 1 Sug. Powers, marginal p. 232, cites Reid v. Underhill, 12 Barb. 113.

The fact that the executor and the legatees, by agreement sold the land for a division merely of the proceeds among the latter, cannot weaken the force of the trust fixed by the terms of the will to first pay the debts of the testator; more especially when suit, at the time of the sale and before, was pending on the note of the testator, thereby charging all parties with notice of its existence. If a power be badly executed, it may, in many cases, be re-exercised in a valid manner. 1 Sug. Powers, marginal p. 354.

A court will not permit the negligence or accident of a trustee, or other circumstances, to disappoint the interests of those for whose benefit he is called upon to execute the trust. Hill, Trustees, marginal p. 67. The executor must follow the powers of the will. 1 Sug. Powers, marginal p. 117.

And the acts of the executor and legatees cannot revoke or suspend the power. 1 Sug. Powers, marginal p. 45; Id. p. 49, 7th paragraph.

The unauthorized sale of the land to M. L. Durham, as stated in the facts, did not impair the right of Earle to pursue the land in the hands of the executor for the satisfaction of his debt against the testator.

It is quite apparent that the executor neither sold nor intended to sell the land for the payment of Earle's debt. Fortunately for Earle, the act of 1866 (Pas. Dig. art. 1371) afforded a direct remedy for just such a case. It provides that the executor might be sued, just as Earle sued him; and when judgment was obtained, it authorized it to be rendered just as it was rendered--that execution might issue, which was done, and the land sold at sheriff's sale to the appellant. This is the title on which he rests.

The appellees, Cross and wife, must recover, if at all, on the strength of their own title. Claiming under Durham, they have only such title as he had. In the sale and division Mrs. Cross, as one of the legatees under the will, took one of the notes given by Durham to the executor on his purchase of the land. Cross and wife obtained judgment on this note against Durham, and a decree to enforce the vendor's lien, and became the purchasers of the land at sheriff's sale under that decree, paying no money except the cost but crediting a title under one thousand dollars on their judgment against Durham.

Thus it will be seen that Cross and wife appropriated to their own use this sum, while the debt of the testator remained unpaid, although directed by the will to be first paid. On this purchase of Durham for his notes at twelve months, taking the executor's (Smith's) bond for title, not a dollar paid on the purchase notes, and the whole transaction in violation of the directions contained in the will, the appellees, Cross and wife, seek to eject McDonough, the appellant, from the land, he deriving title by a regular proceeding to judgment on a debt directed by the will to be first paid.

It must be kept in view, that the executor and the legatees acted with full notice of the existence of the debt of Earle against the estate; in any event, as privies in estate, they are charged with notice.

A purchaser at sheriff's sale, with notice of outstanding equities that existed against the property at the time the judgment was rendered, takes the property subject to such equities. Blankenship v. Douglass, 26 Tex. 225.

Durham could not have recovered against executor Smith without payment of the notes given for the land. How can Cross and wife, claiming under him, occupy a better position? Watkins v. Edwards, 23 Tex. 443;Mitchell v. Puckett, 23 Tex. 573.

The legal conclusion follows, that the appellees, Cross and wife, holding by their purchase of the title of Durham merely, cannot thus maintain their action of trespass to try title in this case.

Wm. Steadman and A. M. Jackson, also for appellant. I. The executor had no power...