Peters v. Caton

• Decision Date: 01 January 1851
• Citation: Peters v. Caton, 6 Tex. 554 (Tex. 1851)
• Parties: PETERS AND OTHERS v. CATON.
• Court: Texas Supreme Court

6 Tex. 554

PETERS AND OTHERS

v.CATON.

Supreme Court of Texas.

1851.

Whether the authority of an executor or administrator is a mere naked statutory power, which must be strictly pursued, and that this must be proved by the purchaser in order that title may pass, is not material to the decision of the question suggested by the argument. If the provisions were to be regarded in many particulars directory to the executor or administator, and if the sale, like that of a sheriff's, would not be affected by any irregularities which might take place without the knowledge or participation of the purchaser, yet a departure from the statute in the particular of either time or place could not be classed as an irregularity, and would avoid the sale.

The probate judge has authority to order a sale of slaves or lands to be made at a place other than the court-house door of the county; but if the order of sale do not designate another place, the sale will be invalid if not made at the court-house door of the county. There are exceptions to this rule, as where the sale is confirmed, all minors being represented, and there is no appeal; or where those who are interested in annulling the sale are estopped, as by the reception of the proceeds, &c. (Note 91.)

Where a distributee of an estate, to whom a note taken for the purchase-money of a slave sold as the property of the estate had been assigned in distribution, instituted suit on the note and the purchaser resisted the payment of the note averring that the sale was void, that he had offered to restore the slave and that he was then ready to restore him, the court finding the sale void, held that the note should be canceled and the slave restored; and further ordered that the cause should be remanded, and that the legal representatives or heirs of the deceased intestate should be made parties to the suit, and that judgment should be rendered in favor of the representatives or heirs of the said estate for the amount of hire due from the defendant, if the latter had offered to restore the slave before the institution of the suit; the hire to be computed to the date of such offer only.

Error from Red River. The plaintiffs in error were sued on a pron issory note given for the price of a slave purchased at a succession sale, and the defense set up was, that the sale was illegal; that it was not made at the court house nor on the first Tuesday of the month as required; and that as soon is the defendant John S. Peters was apprised of the illegality, he requested the administratrix to take back the negro and give up the note, which she refused, and the defendants averred their readiness to deliver up the negro, and they prayed that the note be canceled and the slave delivered to the administratrix. The plaintiff was one of the distributees; he had been present at the sale, and the note had been assigned to him in the distribution of the estate. The petition was in the ordinary form, and contained the usual allegations in a suit on a promissory note. A transcript of the records of the Probate Court was read in evidence, embracing copies of the order of sale, a list of the negroes sold, and their prices. The statement of the sale showed it was made at De Kalb, which was not the county seat, on the 23d of January, 1846. The order of sale was as follows:

“?? Caton, administratrix of the estate of William Caton, deceased, and the heirs or legatees of the said estate, to wit, William R. Caton, John M. Caton, and O. S. Caton, this day presented in open court their petition praying the court for an order to sell the slaves belonging to the estate of the said decedent on such terms as the court may deem proper in order that an equitable division of said estate may be made amongst the said heirs or legatees; and it appearing to the satisfaction of the court that the said estate is unembarrassed and free from debts, it is therefore ordered by the court that their said petition be granted, and that the said administratrix proceed to sell the said slaves on a credit of twelve months, with bond and good securities; but it is further ordered that David M. Chisolm be appointed guardian ad litem to defend the interest of John M. Caton and Lafayette Caton, minor heirs to the said estate.”

There was no evidence of the action of the Probate Court on return of the sale or whether any had been prayed or taken.

Judgment for the plaintiffs.

A. Morrill, for plaintiffs in error. The sale was void and conferred no title upon the purchaser, (Acts of 1840, p. 66; Id., p. 179; Acts of 1842, p. 67,) having been made at a time and place different from those prescribed by the statute. The note was therefore without consideration. The plaintiff is one of the heirs and was present at the sale. (Bank of Hamilton v. Dudley's Lessee, 2 Pet. R., 523; Ventress v. Smith, 10 Id., 175; Turner v. Thrower, 5 Port. R., 52; Wyman v. Campbell, 6 Id., 220; 1 Story Eq., sec. 298, note 2; Bank U. S. v. Owens, 2 Pet. R., 539; Craig v. Missouri, 4 Id., 436; 2 Kent Comm., 466, note b, and authorities cited; 11 Mart. R., 610; 7 Mart., N. S., 185; 8 Id., 246; 1 Port. R., 57.)

S. H. Morgan, for defendant in error.

I. If the law requires that negroes of decedents shall be sold at the county seat, and on the first Tuesday in the month, it is still more clearly apparent that the Probate Court had jurisdiction in ordering the sale of the negroes of decedents; and it is apparent from the evidence in the transcript of said cause that the jurisdiction of said court did attach, and that an order of sale was made by said court; and any irregularity which may have occurred in relation to the time and place of selling the property under said order only rendered said sale or order voidable, and the same cannot be questioned by a collateral inquiry, and until reversed would be binding in all courts. (1 Tex. R., 301; Laws of Tex., vol. 4, p. 122, sec. 38.)

All sales of real estate and negroes of a decedent, made by an administrator under an order of the Probate Court, shall be at the court house of their respective counties, unless otherwise ordered by the court, and like notice as that required for sales under executions shall be given in such cases. This is the law, and it shows most conclusively that the sale of said administratrix under said order is legal and regular, and that it is conclusive against all parties and cannot be avoided. (See Laws of Tex., vol. 5, pp. 66 and 179; Id., vol. 6, p. 67; Id., vol. 7, p. 21; also vol. 4, p. 122, sec. 38; also U. S. Digest, vol. 2, p. 366, secs. 133 and 138.)

HEMPHILL, Ch. J.

Whether the sale be void or not depends on the statutory provisions in force at the time regulating sales of estate property by virtue of orders or decrees of Probate Courts. The act of 21st January, 1841, (art. 1057, Dig.,) declares that public sales by sheriffs, constables, administrators, &c., may be held at the residence of the owner of the property, or at the late residence of a deceased person, or at any other...