Neill v. Cody

• Decision Date: 01 January 1862
• Parties: ANDREW NEILL v. ELIZABETH CODY.
• Court: Texas Supreme Court

26 Tex. 286

ANDREW NEILL

v.ELIZABETH CODY.

Supreme Court of Texas.

1862.

A record of a probate court, consisting of a petition by an administrator for a sale of lands of his intestate, an order of sale by the court in accordance therewith, and a report of sales by the administrator, but no approval or confirmation of the sale by the court, or further proceeding thereon evidencing a completion of the sale, is not evidence of title to the land in the person reported by the administrator to the court as the purchaser at such sale.

A confirmation of the sale, or something from which a confirmation might be inferred, or, at least, something done by the purchaser entitling him to have the sale confirmed, was necessary to be shown in order to enable him to claim title under it. [ Post, 353.]

The purchaser was not required to comply with the terms of the sale until it was confirmed. The case of Bradbury v. Red, 23 Tex. 260, cited and approved on this point.

Where the officer taking a deposition certified that he had examined the witness “under oath by virtue of the commission hereto attached, and the above and foregoing contain all his answers, verbatim et literatim, which were sworn to before me in due form of law, and signed, he making his mark and sign thereto,” held, that the certificate was in substantial compliance with the statute.

The plaintiff having proved declarations of a defendant that he, the defendant, had a good title to the land in controversy from the administrator of the intestate to whom it had been patented, and held a deed for it, and had paid the money to the administrator, held, that it was not error to refuse to instruct the jury, on the application of the defendant, that such declarations were evidence of the defendant's title, and dispensed with the production of his deed.

Whether or not special issues should be submitted to the jury was a matter entirely within the discretion of the court; and it was not error for the court to decline to submit special issues proposed by one of the parties litigant.

The possession of a vendee does not inure to the benefit of his vendor as to the portion of the tract not sold by the vendor to the vendee. The case of Cunningham v. Frandtzen, ante, 34, cited and approved as to this point. [[[[ Ante, 34.]

APPEAL from Guadalupe. Tried below before the Hon. A. W Terrell.

This action was brought by the appellee, Catherine Cody, as the heir at law of Michael Cody, deceased, against the defendants, Neill and several others, for the recovery of two tracts of land in Guadalupe county.

The defendants in their answers pleaded a general denial and the limitations of three and five years, and suggested valuable improvements in good faith under possession for more than twelve months. The appellant, Neill, was the principal defendant, under or from whom his co-defendants derived their claims and possession.

The cause came to trial at the fall term, 1858, when the plaintiff made out her title by patents from the government to Michael Cody, for the land in controversy, and by evidence of the death of Michael Cody, and that she was his sister and sole heir.

The defendant, Neill, read in evidence a transcript from the probate court of Austin county, consisting of a petition of John York, administrator of the estate of Michael Cody, preferred to the said court at the November term, 1846, and praying for an order of sale of the land in controversy, for the purpose of paying debts against the estate; a decree of the court at the September term, 1847, in accordance with the petition; and a report of sales made by York, the administrator, verified by his oath on the 7th of June, 1848, by which report it appeared that Andrew Neill was the purchaser of both the tracts of land at the administrator's sale on the 1st day of February, 1848. The court below instructed the jury that this “transcript of the proceedings of the probate court of Austin county, read before you, contains no evidence of title in Neill to the land sued for.”

The plaintiff, in order to prove that Neill claimed under the administrator's sale, and by no other title, introduced the witness Wilson, who testified that “Watson, one of the purchasers under and from Neill, applied to witness to look into his (Neill's) title, when witness and Watson went to Neill, when Neill told Watson he had a good title from the administrator of Cody, and exhibited the transcript from the probate court of Austin county as evidence of title, and claimed to have a perfect title under the sale of the administrator of Cody; and that Neill said nothing about the Patrick deed, which he had at the time; Neill said he had a deed, and had paid the money to the administrator of Cody's estate, and would bring his deed up and put it on record.” In view of which evidence the defendant, Neill, asked the court to charge the jury “that the declarations of Neill, as proven by plaintiff, that he had a good title, and that he had paid the purchase money, and that he had a deed from York, administrator of Cody, is evidence before them;” and further, “that plaintiff having proved Neill's declaration that he had a deed from the administrator of Cody's estate is evidence of that fact, and would dispense with the production of such deed.” The court...