Miller v. Miller

• Decision Date: 01 January 1853
• Citation: Miller v. Miller, 10 Tex. 319 (Tex. 1853)
• Parties: A. J. S. MILLER v. ELIZABETH MILLER AND OTHERS.
• Court: Texas Supreme Court

10 Tex. 319

A. J. S. MILLER

v.ELIZABETH MILLER AND OTHERS.

Supreme Court of Texas.

1853.

It is not error for the court to adjudicate upon the merits “a cause in equity,” without the intervention of a jury, where a jury is not demanded by either party, especially where the trial is, upon a transcript of proceedings of the Probate Court, removed to the district by certiorari without other evidence.

Quere? Whether after the act of 1843, (Hart. Dig., art. 1067,) and before the act of 1846, the Probate Court had jurisdiction to order the sale of real property belonging to an estate upon the petition of the administrator. (Note 62.)

Where a proceeding of the Probate Court is not merely erroneous but void for want of jurisdiction, the limitation prescribed within which it may be revised and corrected in the District Court does not apply.

See this case, for an instance in which a probate sale was set aside and the purchase-money decreed to be refunded.

Appeal from Rusk.^a1 The facts are briefly these: In the year 1842 Samuel Miller died, leaving the appellee, Elizabeth, his widow, and the other appellees, his children. On the 28th day of March, 1842, George Birdwell, justice of the peace, was appointed administrator of said decedent's estate by the Probate Court of Nacogdoches county, gave bond and took the oath prescribed by law. Appraisers were appointed on the 17th day of May, 1842. On the 27th day of June, 1842, an inventory and appraisement were properly returned. The land here in controversy was appraised to $800, or $2 per acre. On the 27th June, 1842, said administrator applied to said court for an order to sell the personal property for the purpose of paying debts. On the 9th July, 1842, an order to sell was granted. On the 29th August, 1842, an account of said sale, to the amount of $96.56 1/4, was returned by said administrator.

On the 3d December, 1842, said administrator filed his petition, stating that the proceeds of the sale of personal property were not sufficient to pay the debts, and asking for an order to sell the landed property of the estate; and on the 26th December, 1842, an order was made by said court to sell the landed estate.

Here George Birdwell's administration seems to have ceased, and no further trace of it is found in the record; whether it was by his death, resignation, or final settlement, we cannot determine. (See Record, from page 15 to 21.)

On the 18th day of October, 1843, Isaac R. Vannoy applied to the Probate Court of Rusk county to be appointed administrator de bonis non of said Miller's estate. At the November Term, 1843, Vannoy's application was continued. At the December Term, 1843, letters of administration de bonis non were granted to Vannoy, who gave bond but did not take the oath prescribed by law. Here we lose sight of Vannoy's administration until September, 1844. At the September Term, 1844, Vannoy applied to said County Court for an order to sell 350 acres of land, being that now in controversy, to pay debts. Upon this application there was an order made at the same term of the court to sell said 350 acres of land. At the March Term, 1845, appraisers were appointed again, who, on the 3d day of March, 1845, being the day of their appointment, returned into court their appraisement of a “title bond on Ben. A. Nansickle for 350 acres of land at 16 2/3 cents per acre.” This appraisement was not made under oath. On the 4th March, 1845, Vannoy “certifies” that he had sold the 350 acres of land at 20 cents per acre, but does not show who he sold it to, when, where, or whether privately or at auction. Here Vannoy's administration ceases, and no further traces of him or his acts are disclosed by the record. (See Record, from page 11 to 15.)

At the February Term of the Probate Court for Rusk county, 1846, William Howeth was appointed administrator de bonis non of said estate, without any application for or notice of the same previously given. He gave bond but never took the oath prescribed by law. From time to time down to the March Term of said court, 1851, Howeth, the administrator, made exhibits of the condition of said estate, and many other steps were taken therein, and at said March Term, 1851, he made final settlement and was discharged. (See Record, from page 21 to 35.)

On the ____ day of January, 1848, William Howeth, as administrator de bonis non, conveyed by deed to the appellant, Andrew J. S. Miller, 348 acres of land, being the same in controversy, for the sum of eighty dollars. This conveyance was made without any order of the court therefor; the sale never was reported by him, nor was there ever any order of the court confirming it. (See Record, from page 7 to 9.)

On the 8th May, 1851, the appellees, as distributees of said Samuel Miller's estate, filed their petition in the court below, and obtained a writ of certiorari to remove the proceedings of the Probate Court into the District Court for investigation. They pray for a revision of said Probate Court's proceedings and for a trial de novo; that said orders of sale be set aside and declared null and void, that the sale made by Howeth to A. J. S. Miller be annulled and the title vested in appellees as heirs of the said Samuel Miller, and that distribution of the same be made between them, and that they be required, if it be legal for them so to do, to refund to said A. J. S. Miller the purchase-money with interest. (See Record, from page 1 to 10.)

On the 13th November, 1851, the appellants filed exceptions to the sufficiency of the petition, and as grounds of exception say, 1st. “That the same is coram non judice, this court having no jurisdiction,” &c. And 2d. “That the same is insufficient in law for them to be compelled to answer,” &c.

1st. They then interpose the statute of two years between the date of the sale and the commencement of this suit as a bar.

2d. They plead the three years which elapsed between the date of the deed from Howeth to A. J. S. Miller and the commencement of this suit as a bar. 3d. They deny generally the allegations in the petition. (See Record, from page 36 to 38.)

On the 20th November, 1851, appellees filed their amended petition, alleging that the order to sell the land was procured by the false and fraudulent representations of Vannoy, the administrator, as to the indebtedness of the estate. (See Record, from page 38 to 40.)

At the Spring Term, 1852, the cause was heard upon petition, exceptions to the petition, answer and transcript of the proceedings, and record of the County Court. The court overruled the defendant's exceptions to plaintiff's petition and proceeded to decree--

1st. That the sale of said land by Vannoy and all orders in relation thereto be canceled.

2d. That the deed executed by Howeth to A. J. S. Miller be canceled and delivered up to plaintiffs.

3d. That said land be vested in plaintiff, and that the same be divided between them, one half to the widow and the other half equally between the other appellees.

4th. That plaintiffs pay to defendant, A. J. S. Miller, $70, with interest thereon from 1st March, 1846, till paid.

5th. That plaintiffs pay the cost of this suit. (See Record, pages 40 and 41.)

There was a motion in arrest of judgment and for a new trial overruled, and notice of appeal. (See Record, page 41.)

The errors assigned are--

1st. The overruling the defendant's exceptions to petition.

2d. The court erred in deciding without the intervention of a jury or swearing a witness.

3d. The court erred in declaring the deed from Howeth to Miller void.

4th. The court erred in setting aside an order of sale made more than five years before the commencement of this suit and after the purchase-money had been paid and a deed executed by the administrator. (See Record, page 43.)S. P. Hollingsworth, for appellant. I. The court should have sustained the exceptions because the sale was made in pursuance to an order of the Probate Court, which had not been reversed; and because the sale had been regularly reported by the administrator Vannoy, which report had been received by the court; and because Miller, the appellant, was a purchaser without notice of any fraud on the part of the administrator or any other person connected with the estate. John C. Miller, the purchaser at the sale by Vannoy, was an innocent and bona fide purchaser without notice, having purchased at a judicial sale, and cannot be ousted of his rights for an irregularity on the part of the administrator in procuring the order of sale. He was in no way connected with the procuring the order, provided it was admitted, for argument sake, that it was procured by fraud on the part of Vannoy, all of which we deny, and the record nowhere shows any fact that will go to show anything like fraud, or any inducement for Vannoy to act fraudulently in the premises. And, unless the record discloses facts that will amount to fraud, the court is bound to place that construction on his acts that he intended to act, and did act, correctly. Therefore we say that the court erred in coming to the conclusion from the record that Vannoy acted fraudulently in procuring the order of sale.

And, again, the plaintiff nowhere alleges in his petition any fraud on the part of John C. Miller, the purchaser at the sale, or on the part of the appellant, consequently the court erred in not sustaining the exception for this reason; for, until fraud is visited upon A. J. S. Miller, he is an innocent purchaser without notice, and must hold the land. (Davis v. Loftin, 6 Tex. R., 489; Garrett v. Nash, Dallam, 502; Scott & Solomon v. Maynard, 550; Smith v. Smith, 2 Tex. R., 621.)

II. Unless the record disclosed fraud the court could not judicially know of the existence of any other fraud, only by impaneling a jury to try an issue of facts; or, the cause being submitted to the court without the intervention of jury, there was no witness sworn as the record shows, and no submission waiving a jury.

III. The 3d...