Mills v. Herndon

• Decision Date: 29 April 1890
• Citation: 13 S.W. 854
• Parties: MILLS <I>v.</I> HERNDON.
• Court: Texas Supreme Court

13 S.W. 854

MILLS

v. HERNDON.

Supreme Court of Texas.

April 29, 1890.

Commissioners' decision. Appeal from district court, Grayson county.

This suit was brought in the district court of Grayson county on February 15, 1879, by J. P. Mills, as guardian ad litem of Sue M., Jessie L., Willie H., Benjamin E., and Nannie H. Toler, minors, against W. S. Herndon, Mary J. Ewell, Jesse Cook, L. M. Hopkins,

Marion Brown, John Griffin, and E. Bynum, to recover 1,480 acres of land in said county, patented to Charles P. Green, assignee of John Brown, on July 6, 1841. Plaintiffs claimed title under the will of Charles P. Green, devising his estate to his brothers T. J. and N. P. Green, and making the latter his executor; deriving their title through a deed executed by the executor. The defendants, except W. S. Herndon, were in possession of the land, claiming under a lost and unrecorded deed from Charles P. Green in his life-time. W. S. Herndon claimed title under an administrator's sale of the land, in administration upon the estate of Charles P. Green in the county court of Brazoria county, Tex. On a former trial the title of plaintiffs was held invalid, and judgment rendered for defendants. This was reversed on appeal, and plaintiffs' title pronounced sufficient, and the proof of the defendants as to the alleged deed from C. P. Green held insufficient. 60 Tex. 360. On the second trial in the district court, on May 5, 1887, a compromise was made between plaintiffs and defendants, except Herndon, disposing of the matters in controversy between them. Defendant Herndon, however, relied on his title under the administrator's sale, and upon the trial the court held his title good, and directed the jury to return a verdict in his favor; and he had verdict and judgment accordingly. From this judgment the guardian has prosecuted this appeal, assigning as error the action of the court in directing a verdict in favor of the defendant Herndon, because his title was invalid in the particulars pointed out in the several propositions in this brief, all of which fall under one assignment: "Assignment of Error. The court erred in its charge to the jury, in instructing them that the defendant W. S. Herndon, by his paper evidence, showed perfect title to himself to the land in question, and that they should find for the said Herndon, because the evidence showed title in the plaintiffs in this suit, and the paper evidence exhibited as showing title in defendant Herndon, was not sufficient, in this: that the transcript from the county court of Brazoria county showed that the administration on the estate of Chas. P. Green, and the administrator's sale under which the defendant Herndon claimed title, were illegal, and insufficient to pass the title of the estate or heirs of said Chas. P. Green to the land in dispute, because said county court of Brazoria county had no jurisdiction to grant administration on the estate of said Chas. P. Green, as by said transcript appears; and said administration and sale were fraudulent and void, as appeared by said transcript; and said county court had no jurisdiction to order the sale of the premises in controversy, as by said transcript appears; and said county court had no jurisdiction or authority to order a sale of the land in controversy for the purposes or in the manner pursued; and the said sale was illegal and void, and such as was beyond the power of the court to order, as appears by said transcript.

The following statement of the facts proven is equally applicable to each of the five propositions presented under this assignment, and applies as a statement to each. The land in controversy was patented to C. P. Green, by whose will, duly probated upon his death in the state of North Carolina, it was devised to his brothers N. T. Green and T. J. Green; the former being named as executor, who conveyed the land to S. H. Toler, from whom plaintiffs acquired it by inheritance. Defendant Herndon exhibited in support of his claim of title a transcript from the records and papers on file in the county court of Brazoria county, by which it appeared that on December 26th the following order was there made: "This day came on to be heard the petition of Thomas J. Green, representing that his brother Charles P. Green (who formerly resided in this county, and belonging to the firm C. P. Green & Co., of which he is the surviving partner) died some time in the fall of 1843, leaving some property in Texas, in which the said deceased and the petitioner were jointly interested, and praying that letters of administration on said estate of C. P. Green may be granted to Peter McGreal, Esq.; and it having been proved to the satisfaction of the court that notice of the application has been given for ten days by posting up advertisements, three in number, — one at the court-house door, and two others in said county, not in the same city or town, — for all persons interested to appear and file their objection, and no objections appearing on file, it is considered by the court, ordered, adjudged, and decreed, that letters do issue to the said Peter McGreal upon his entering into bond of the sum of five hundred dollars; and it is further ordered that R. L. Clements, H. C. Wilcox, R. Rudder, and Samuel Harris — two to act — be, and they are hereby, appointed appraisers to make an estimated inventory of said estate." Peter McGreal gave bond in the sum of $500 on January 8, 1849, and made oath that Charles P. Green died without leaving any lawful will, so far as he knew or believed, and that he would well and truly perform all the duties of administrator of his estate.

No inventory appeared to have been made, or property belonging to the estate discovered, until June 28, 1854, when the administrator presented the following petition to the court: "The state of Texas, county of Brazoria. To the Hon. S. W. PERKINS, Chief Justice of said county: Peter McGreal, administrator of the estate of Chas. P. Green, deceased, respectfully shows that he has discovered, after a great delay and trouble, the following tracts of land belonging to the said deceased, viz., 420 acres of land situated in Fannin county, known as `Survey No. 75,' patented No. 207, vol. 1, to Chas. P. Green, assignee of William McGill; 480 acres of land situated in Fannin county, known as `Survey No. 89,' patented No. 216 vol. 1, to Chas. P. Green, assignee of Wm. Brookner; 960 acres of land situated in Fannin county, known as `Survey No. 70,' patented No. 215, vol. 1, to Chas. P. Green,...