Millican v. McNeill

• Decision Date: 16 December 1908
• Citation: 114 S.W. 106
• Parties: MILLICAN et al. v. McNEILL et al.
• Court: Texas Supreme Court

114 S.W. 106

MILLICAN et al. v. McNEILL et al.

Supreme Court of Texas.

December 16, 1908.

Error from Court of Civil Appeals of Second Supreme Judicial District.

Action by James McNeill and others against Ira Millican and others. Judgment for plaintiffs, and defendants bring error. Reformed and affirmed.

W. W. Moores, for plaintiffs in error. Oxford, Carlton & Jackson, for defendants in error.

WILLIAMS, J.

The defendants in error, as heirs of John M. Stephen, brought this suit to recover of the plaintiffs in error an undivided one-sixth interest in a lot in the town of Stephensville, admitting in their petition that the defendants were the owners of the other five-sixths. The chief defense was that of limitation, and the question as to its sufficiency depends upon the following facts: John M. Stephen, who owned the lot in controversy, died in 1862, leaving two children, one of whom was the wife of W. W. McNeill. McNeill became the administrator of Stephen's estate and was acting as such as late as 1877. His wife died in 1864, and he inherited from her a life estate in one-third of her half of the real estate which had descended to her from her father, and thus became entitled to a life estate in one-sixth of the lot. In 1871, he procured an order for the sale of the lot, which is admitted to be void because it was made at a time when the court could not lawfully sit. He sold the lot to J. W. Moore and executed to him a deed reciting his authority to act as administrator, the order of sale, and the sale, and by which as administrator of the estate he bargained, sold, and conveyed the lot to Moore, to have and to hold to him and his heirs in fee simple forever. The deed closed with this covenant: "And I the said W. W. McNeill administrator as aforesaid do covenant with and to the said Moore his heirs and legal representatives to warrant and forever defend this title to the aforesaid lot, against the claim or claims of any and all persons lawfully claiming or to claim the same or any part thereof to the extent that I am bound to do according to law as such administrator and no further." The defendants claim under this deed and have held such possession as to bar the claim of the heirs, unless it is true that their cause of action for the recovery of the one-sixth of the land first accrued upon the termination of the life estate therein of McNeill by his death, which occurred less than five years before the institution of the action. The contention of the defendants' counsel is that nothing passed by the administrator's deed to Moore, and that those holding the lot were naked trespassers against whom plaintiffs, as owners of undivided interests therein, could at any time have maintained an action for the recovery of the possession of the whole, which contention is based upon the doctrine of the cases of McConnico v. Thompson, 19 Tex. Civ. App. 539, 47 S. W. 537, and Elcan v. Childress, 40 Tex. Civ. App. 193, 89 S. W. 84.

The counsel for plaintiffs contend that McNeill's deed passed to Moore his life estate and entitled the latter and his vendees to possession until that estate ended upon McNeill's death, and that plaintiffs' cause of action for the recovery of the remainder only arose upon the happening of that event. The district court and the Court of Civil Appeals sustained the latter contention, and we are of the opinion that this is correct. We do not base our opinion upon the covenant of warranty in the administrator's deed, finding it unnecessary to go to the extent of holding that such warranty bound McNeill personally, although there is authority for the proposition. Aven v. Beckom, 11 Ga. 1. Note to Allen v. Sayward, 17 Am. Dec. 224 et seq. That question would become important if those holding under the deed were claiming a title acquired by McNeill after its execution. The principle controlling this case is that which estops the maker of a deed purporting to convey an estate of a particular kind from afterwards asserting that such an estate did not pass. McNeill owned the life estate when he made the deed in question and...