Poor v. Boyce

• Decision Date: 01 January 1854
• Citation: 12 Tex. 440
• Parties: POOR AND OTHERS v. BOYCE.
• Court: Texas Supreme Court

12 Tex. 440

POOR AND OTHERS

v.BOYCE.

Supreme Court of Texas.

1854.

See this case for circumstances which showed an abandonment of a location and survey.

A certified copy of field notes, taken and certified by the District Survey or from the records of his office, is competent evidence to prove a survey. (There was a certificate by the Governor of the official capacity of the person signing as District Surveyor.)

Where the land, situated in Red River, was claimed by virtue of a location and survey made in April, 1838, and the certificate under which they purported to have been made, was indorsed “File 856. Bexar county. 1st class. Headright certificate Collin C. McRae. 1 Lea. & Lab.,” which indorsement was proved by the opposite party to be in the handwriting of “Stephen Crosby, of the General Land Office,” and read in evidence without objection, it was said that unexplained the indorsement tended to prove an abandonment of the location in Red River and a survey in Bexar and return thereof to the General Land Office.

An administrator has the same authority to lift a location, which he had to make it; but if he combine with others to defraud the heirs, or abuse the trust to their prejudice in removing the location, the act of removal may be annulled and the original location reinstated, provided innocent third persons be not injured thereby.

Before the introduction of the Common Law, it was not essential for the assent of the husband to appear by the deed by which the wife disposed of her separate property; and the assent of the husband in due form will be presumed where it is evident he must have been aware of the sale, and made no objection for several (fourteen) years thereafter.

Where an administratrix petitioned the Probate Court in 1840 for an order of sale of certain real estate, on the ground alone that there would be a great deal of litigation and expense necessary in order to recover it for the estate, and the order was granted accordingly, it was held that the petition gave the Court jurisdiction, and that the sale could not be attacked collaterally.

Where the fiduciary character of one acting as administrator is recognized by the Probate Court, as between the heirs and creditors, and those dealing with the acting administrator, his authority cannot be called in question collaterally for the purpose of invalidating his lawful acts, done in the due course of administration. And therefore, if he alienates property of the estate by order of the Probate Court and in the manner prescribed by law, though his appointment be not regular and legal, the title of the bona fide purchaser will nevertheless be good and indefeasible (Note 72.)

It would be a dangerous doctrine to hold that the omission of the administrator to obtain an extension of time, or of the Court to make the entry of such order upon its minutes, would have the effect to invalidate acts done by the acting administrator in the due course of administration, to the extent of defeating the title of a bona fide purchaser.

Error from Bowie. Action of trespass to try title, commenced October 14th, 1852, by the plaintiffs in error, who were the widow and minor heirs of Collin C. McRea, against the defendant in error, to recover a league of land at the mouth of Mill Creek in Bowie county.

The plaintiffs proved Collin C. McRea came to Texas in 1833, and brought his family in 1834 and settled at the mouth of Mill Creek, then in the county of Red River, and made considerable improvements, and cleared and cultivated about thirty acres of land; that he died at that place in the year 1835; that his family continued to reside there for about three years afterwards; that McRea's widow, one of the plaintiffs, married Ira S. Poor in the spring of 1837; that on the 13th of February, 1838, a certificate was issued by the Board of Land Commissioners of Red River county, No. 342, to the heirs of Collin C. McRea on the application of Eliza Poor by her attorney in fact, “she having proved to the satisfaction of said board that she was the legal representative of said heirs;” that on the 19th April of same year, a survey was regularly made by a Deputy Surveyor, by virtue of said certificate, of the land described in the petition, and within twenty days thereafter was returned to the County Surveyor and by him examined and approved and certified accordingly; the witness who proved the survey was the Deputy who made it; he was enabled to give the field notes from a memorandum kept by him and from memory; John H. Dyer was living upon the place when he made the survey, and said it was all right; the certificate was placed in his hands by Ira Poor, the husband of Eliza Poor, and was returned by him to the office of the County Surveyor with the field notes; the Surveyor of Red River district testified that he had made diligent search in his office, and could not find any trace of the field notes or certificate; the plaintiffs gave the certificate in evidence, also a certificate in due form that it had been recommended by the traveling board.

The defendant claimed only one thousand acres, including the improvements aforesaid, and admitted he was in possession of it. He offered in evidence a certified copy of the bond of “Eliza Poor, the wife of Ira S. Poor, administratrix of the estate of Collin C. McRea,” in the sum of $25,000, dated the ____ day of November, 1838, to John H. Dyer, conditioned to make to the said Dyer, “as soon as the titles are issued by the Government of the Republic of Texas to emigrants, for headrights, upon the reasonable request and at the proper costs and charges of the said John H.,” an absolute and indefeasible title to “all that undivided half of all that certain messuage and tract of land upon which the said John H. Dyer now resides, lying and situated at and below the mouth of Mill Creek on Red River, in the county aforesaid,” &c., “containing one thousand acres, with the town site of the town of Berlin;” signed “Eliza Poor,” and sealed in presence of two witnesses, and acknowledged in the present form for unmarried women, before J. G. Wright, Clerk, attested by his seal of office; but what seal did not appear from the copy, although it appeared from other papers in the case that Wright was Clerk of the County Court at that time; in connection with the offer of the copy of the bond in evidence, which had been filed and called to the notice of the plaintiffs three days before the trial, the defendant filed an affidavit that the original bond was not in his possession or control, and that he could not procure it. To the introduction of which evidence the plaintiffs objected that the bond had not been legally recorded; and that it appeared from the bond itself that it was executed by a married woman, without being joined by her husband. The objections were overruled and the bond was read.

The defendant then offered in evidence a certified copy of the petition of Eliza Poor, as administratrix of the estate of Collin C. McRea, to the Probate Court of Red River county, at October Term, 1840, in which she represented “that there has come to the hands of said administratrix a certain improvement, or part of it, situated and lying at the mouth of Mill Creek on Red River in said county, rightfully belonging to the estate of said McRea, about which there will be a great deal of litigation and expense to the petitioner to obtain the land;” and she therefore prayed an order of sale of the land “agreeably to the statute made and provided in such case;” the order made thereon, for the sale of “the improvement” on a credit of twelve months; the final account of Eliza Poor as administratrix of Collin C. McRea, filed September 26th, 1842, in which she charged herself with “sale of improvement at Berlin under order, February 1st, 1841, $2,500,” which account was not approved; and the report of Auditors at November term, 1842, who had been appointed to audit said account, in which report they found the amount of $5,204.12 in the hands of the said administratrix, which report was at said term confirmed: To the introduction of which evidence the plaintiffs objected that it had not been shown that said Eliza was administratrix of Collin C. McRea; that the petition itself showed the Court had no authority to order the sale; and that there was no return of sale. The objections were overruled and the evidence read.

The defendant then offered in evidence a copy of survey from the District Surveyor's office of Bexar district, for one league and labor, which purported to have been “made for Eliza Poor, legal representative of Collin C. McRea, it being the land to which he is entitled by virtue of a certificate No. -- issued by the Board of Land Commissioners for the county of Red River.” It purported to have been made on the 10th of November, 1838, by John C. Hays, Deputy Surveyor, Bexar district, and to have been examined, approved and recorded by John C. Hays, District Surveyor of Bexar district. The copy was certified by the District Surveyor of Bexar district to be a true copy of the original, as taken from the records of his office; and there was a certificate by the Governor that S. McDonald, who certified the copy, was at its date the District Surveyor of Bexar district. To the introduction of which evidence the plaintiffs objected that the field notes did not describe any certificate; that the same person signed as deputy and principal surveyor, and that the certificate of the surveyor had no date; and that it did not purport to be a copy of the original field notes, but a copy of the copy on record in the Surveyor's office; which objections were overruled and the evidence read.

The defendant then proved certain indorsements on the land certificate of McRea's heirs, and on the Clerk's certificate of its genuineness, to be in the handwriting of Stephen Crosby, of the General Land Office, and read the same as follows: “File 856. Bexar Co. 1st...