McMahan v. J. F. Rice. George W. Mcmahan

• Decision Date: 01 January 1856
• Citation: 16 Tex. 335
• Parties: GEORGE W. MCMAHAN v. J. F. RICE. GEORGE W. MCMAHAN v. ANN E. SMITH.
• Court: Texas Supreme Court

16 Tex. 335

GEORGE W. MCMAHAN

v.J. F. RICE.

GEORGE W. MCMAHAN

v.ANN E. SMITH.

Supreme Court of Texas.

1856.

It is unnecessary, in this case, to inquire what are the rights of a purchaser at a sale by an administrator, acting under a grant of administration by a court not having jurisdiction over the particular estate, but having a general jurisdiction to grant letters of administration.

It is clear, beyond question, that a sale under a grant of administration, obtained fraudulently and contrary to law, can confer no rights upon the purchaser with notice of the fraud, as against the heirs or others interested in the estate, who are thereby defrauded.

Though a fraudulent intent is not expressly averred, it is a necessary consequence of the facts alleged. And this court has heretofore decided, that where the facts alleged constitute a fraud, it is not essential expressly to charge that they were done with a fraudulent intent.

Repeated decisions of this court have settled that the correctness of the rulings of the court, upon instructions to the jury, will not be revised in the absence of a statement of facts. [11 Tex. 649;post, 563; 18 Tex. 616;23 Tex. 441.]

Error from Harris. Tried before the Hon. Peter W. Gray.

Suit by J. F. Rice against Ryan, Herndon and McMahan, commenced in Fort Bend, and removed by change of venue, the judge of the first district having been of counsel, to Harris. The petition alleged that Sanford Rice was one of the Mier men; that at his death, the plaintiff was his only son and heir, and entitled as such to certificate of public debt No. 823, second class, issued, etc., for $605, and that he had been deprived of said certificate and the money for which it calls by the illegal and wrongful acts of the said defendants, in this: that many years preceding the year 1842, and preceding the time Sanford Rice joined the army in that year, he was a resident citizen of Harris county, domiciliated in said county, and had no other residence in the state of Texas; that his principal estate is and always has been in Harris county, consisting, etc.; that he has no lands or effects in Fort Bend county, nor was he ever a citizen of said county; that no administration was ever taken out in the county of Harris; that no debts existed against his estate; that when he left the county of Harris in the year 1842 to join the army, he left his effects and estate in the hands of an agent, which agent has paid the taxes on said estate up to this time; yet, notwithstanding the said Sanford died leaving his estate unincumbered by debt, and the whole of it descended directly to petitioner, as heir, the said William Ryan, upon a petition filed by him in the county court of Fort Bend county, procured himself to be appointed administrator of the estate of Sanford Rice, by the said court, at the July term, 1850, which court had no jurisdiction over the said estate; that on or about the 7th day of October, 1851, the said Ryan sold the said certificate of public debt, No. 823, second class, as pretended administrator, to one John H. Herndon, who had notice of the rights of this petitioner and the want of authority in the said Ryan to sell the same; that on or about the 29th day of November, 1851, said Herndon sold said certificate as aforesaid to George W. McMahan, who had notice of the rights of this petitioner, and the want of authority of said Ryan and Herndon, or the county court of Fort Bend county, to take jurisdiction over the estate of Sanford Rice, deceased; that George W. McMahan, on or about the 13th of March, 1852, drew from the state treasury the sum of six hundred and five dollars upon said certificate, without any authority of this petitioner or any authority of law; that by the illegal, wrongful and unauthorized intermeddling with the estate of Sanford Rice, and the said certificate, by the said Ryan, Herndon and McMahan, petitioner has been deprived of six hundred and five dollars; that they have converted the same to their own use, to petitioner's damage one thousand dollars, etc. Allegation that plaintiff is about twenty-one years of age.

The defendants answered separately, by general demurrer and general denial, and jointly by plea of the statute of limitations.

Herndon's demurrer sustained; verdict and judgment for the plaintiff against the other defendants for an amount equal to one-half the amount of the certificate and interest. No statement of facts nor bill of exceptions; but from the charge of the court, which is not essential to this report, it would appear that it was proved that Sanford Rice left a widow, who is still living. Error by McMahan.

Suit by Ann E. Smith and Zopher Smith, her husband, only daughter of Malcolm McCauley, against same defendants. Allegations similar in every respect, except that it was alleged that administration had been opened on the estate of said McCauley, in Harris county, and closed by full and final settlement in 1845. Answers same; rulings same; verdict and judgment for $783.79. No statement...