Merriweather v. Kennard

• Decision Date: 01 January 1874
• Citation: 41 Tex. 273
• Parties: M. J. MERRIWEATHER ET AL. v. A. D. KENNARD ET AL.
• Court: Texas Supreme Court

41 Tex. 273

M. J. MERRIWEATHER ET AL.

v.A. D. KENNARD ET AL.

Supreme Court of Texas.

1874.

ERROR from Johnson. Tried below before the Hon. Charles Soward.

Trespass to try title, by M. J. Dixon and her husband, E. A. Dixon, claiming as sole heir of W. D. Merriweather, to recover 1,280 acres, the head-right of the ancestor, W. O. Merriweather.

By amended petition it was alleged that W. O. Merriweather emigrated to Texas in 1838 with his family, and settled in Austin county; that on August 2, 1838, he obtained from the Board of Land Commissioners of Colorado county a conditional head-right certificate for 1,280 acres, and in 1841 died intestate, leaving little or no effects save the 1,280 certificate; that soon after the death of said intestate, in 1848, Charles Fordtran, Zaddock Hubbard, and J. J. Jackson, combining to deprive the heirs of W. O. Merriweather of said certificate, fraudulently obtained the unconditional certificate to be issued by the County Court of Austin county to said Charles Fordtran, assignee of W. O. Merriweather aforesaid, under which certificate the land sued for had been located, and that said parties attempted to obtain patent in the name of Charles Fordtran, assignee, but that on June 20, 1848, the Commissioner of the Land Office issued the patent in the name of W. O. Merriweather, the deceased, disregarding the pretended assignment; that, foiled in their attempt to secure patent in the name of the assignee, they, the said Hubbard, Jackson, and Fordtran, procured to be issued to said James J. Jackson, in 1850, letters of administration on the estate of W. O. Merriweather by the probate court of Austin county; that the only property returned on the inventory was the 1,280 acres aforesaid, and that said Charles Fordtran obtained an order of said court, and the said Jackson did attempt to convey to the said Fordtran the said 1,280 acres of land; that there were in fact no such transfers by W. O. Merriweather to Hubbard and from Hubbard to Fordtran as had been by them represented, as well to the County Court to obtain the unconditional certificate as to probate court to obtain an order for the transfer of said land as aforesaid.

By amendment plaintiffs set up purchase of the interest of the widow of W. O. Merriweather in the land sued for.

Defendants pleaded; excepted to the allegations of fraud for want of specific allegation of the acts complained of; pleaded not guilty; that they were bona fide purchasers of 640 acres of the 1,280 acre tract; and they pleaded a valid outstanding title in Charles Fordtran. They also specifically set up the proceedings in the probate court, the order and deed made in pursuance of the order in 1851 to Charles Fordtran, and deeds from him to defendants for the 640 acres claimed by them.

The cause was submitted to the court without a jury; judgment was rendered for the defendants, from which the plaintiffs appealed.

No facts appeared how the certificate was obtained by Fordtran, assignee of Merriweather.

Amzi Bradshaw, for plaintiffs in error.

H. D. Prendergast, for defendants in error.

OGDEN, P. J.

There are but two questions presented by this record which require notice in order to the proper disposition of the case by this court, both of which, we think, have long since been finally and definitely settled, upon authority as well as sound reason, and we therefore do not propose to discuss either, further than to show that they are directly referable to decisions heretofore made.

The first question presented is, Was a conditional certificate, which issued to emigrants and settlers under the land law of 1837, and prior to the passage of the act of Jan., 1839, transferable by the grantee? In Graham v. Henry, 17 Tex., 164, this question was directly presented to the court, and Justice Wheeler, in a very able opinion, concurred in by the entire court, says, “it is the material question.”

In that case, after a thorough review of the statutes on that subject, it was decided that neither the law of 1837, nor any in force up to January, 1839, “contained any prohibition or restriction upon the power of the grantee to sell and dispose of his interest, as soon as it was acquired.” This decision has been uniformly acquiesced in since 1856, and we now feel no inclination to question the wisdom of the same. The conditional certificate now in question was issued to William O. Merriweather, on the second day of August, 1838, and under the authority referred to we must hold the same transferable at the pleasure of the grantee.

The remaining question which requires notice here presents more difficulties, but which we think has also been settled: Had the County Court of Austin county authority to order the transfer by the administrator of the 1,280 acre tract of land granted to Wm. O. Merriweather, deceased?

It appears from the record that William O. Merriweather died in 1841 or 1842, leaving a surviving wife and three children, and, so far as the record discloses, leaving no debts, and no property but a conditional certificate for 1,280 acres of land, upon which, in 1846, an unconditional certificate was issued to Charles Fordtran, as the assignee of W. O. Merriweather, and which unconditional certificate was located on the land in controversy, and upon which a patent issued from the State to W. O. Merriweather, his heirs and assigns, in 1848. In 1850, one James J. Jackson was appointed administrator on the estate of Wm. O. Merriweather, deceased, and he returned, as an inventory of the property of the estate, this 1,280 acres of land. Fordtran then filed a petition in the probate court, setting up the fact that he, as assignee, was entitled to the land, and prayed an order of the court requiring the administrator to make a deed to him of the land in controversy. The prayer was granted and the deed executed, which deed is now claimed as one of the muniments of title for appellees.

Upon the hypothesis set up by appellees, and the proof, as disclosed by the administrator of Wm. O. Merriweather's estate, there was not in 1850 a dollar's worth of property rightfully belonging to that estate, and no debts to be paid. Indeed, if any debts had ever existed, they would have become barred by the statutes of limitation in the eight or nine years which had elapsed since the death of Merriweather. There was, then, according to appellees' showing, in 1850, no estate of Wm. O. Merriweather, deceased, to be administered upon, and none to give the probate court jurisdiction. It is true that letters of administration might have been issued on the supposition that there was an estate; but when it became manifest to the court that the land in question formed no part of the estate, as it must have been in order to justify the decree for the execution of the deed, and that there was no estate to be administered, it was the duty of the court to have at once discharged the administrator, who had been erroneously appointed, and to have dismissed the whole matter from the probate docket.

We are, however, after a careful examination of the record, led to the conclusion that the whole proceedings in the probate court was gotten up and carried on by Fordtran, under the mistaken idea that the probate court had or might have jurisdiction and the authority to grant the relief he sought, and that the whole proceeding of obtaining letters of administration was a mere pretense to give the court that jurisdiction. We think this action in that court was a manifest error--that the probate court had no jurisdiction to grant letters of administration, and certainly none to order the execution of a deed. Fordtran evidently mistook his remedy, by a proceeding in the probate instead of the District Court.

But if we were to admit that the probate court had jurisdiction over the estate of William O. Merriweather, and that the 1,280 acres of land in controversy was a part of that estate, still, under the facts of this case, we must hold that the court had no jurisdiction to order a sale or transfer of the same. In Withers v. Patterson, 27 Tex., 499, this court says, in relation to the jurisdiction of the probate court to order a sale of lands: “Its power to order the sale of land of an estate lies within very narrow limits. It can order the sale of the land of an estate for the payment of debts and expenses of administration; to raise the amount of the allowance for the surviving wife and children, and, in certain cases, for the purposes of partition and distribution amongst the heirs. The court has no power conferred upon it by law to sell the land of an estate for any other...