R v. Burnet
| Decision Date | 01 January 1873 |
| Citation | 39 Tex. 177 |
| Parties | JOSEPH RICE, ADM R, v. JOHN H. BURNET ET ALS. |
| Court | Texas Supreme Court |
The maxim that fraud vitiates everything it touches extends to administrators' sales, and in such case the rule caveat emptor will not apply.
APPEAL from Houston. Tried below before the Hon. Leroy W. Cooper.
This suit was brought September 24, 1870, by Joseph Rice, Jr., as administrator of the estate of Joseph Rice, Sen., his father, against the appellees, on a note for $1,275, executed March 3, 1868, for purchase money of two tracts of land sold at administrator's sale.
Defendants pleaded failure of consideration and alleged fraud on the part of the administrator in making the sale; and on the trial it appeared that in 1852 the land in question was owned and occupied by Clinton A. Rice and his wife Jane Rice, as a homestead. In 1857 Jane Rice brought suit for divorce, pending which W. H. Cundiff went to Clinton A. Rice, and Joseph Rice, Sen., stating that he had a claim against the land, and as they desired to deprive Jane Rice of her interest it was agreed between them that suit should be brought in the federal court at Tyler, and Cundiff permitted to take judgment by default, after which he would sell to R. P. Trabue, and Trabue's attorney in fact, Wm. M. Taylor, would convey the land to Joseph Rice, Sen., which was accordingly done.
At the death of Joseph Rice, Sen., the administrator, considering the land as the property of Clinton A. Rice, who was still in possession, delivered to him Trabue's deed and such other evidences of title remaining in the possession of the deceased, nor was any notice taken of it either in the inventory or final distribution of the estate of Joseph Rice, Sen., between the heirs.
On the death of Clinton A. Rice, and while he lay a corpse in his house, the plaintiff's mother, Willie Rice, abstracted the title papers to the land from Clinton A. Rice's effects, delivered them to the administrator of Joseph Rice, Sen., who made an additional inventory, and afterwards sold the land, at which sale defendant, Burnet, became the purchaser.
At March term, 1872, there was verdict and judgment for the defendants, and the court overruling the motion for new trial, plaintiff appealed to the supreme court.
H. W. Moore and Hancock & West, for appellant. The maxim caveat emptor applies to a sale by an administrator, and mere defect of title cannot avail the purchaser, either as a defense to an action for the purchase money, or as ground for rescinding the contract. Thompson v. Munger, 15 Tex. 523;Williams v. McDonald, 13 Tex. 322;Walton v. Reager, 20 Tex. 103.
In all sales made by an executor or administrator, he acts under the decretal order of the probate court, and the purchaser, at his own peril, is required to ascertain the grounds and authority of the fiduciary, not from the declarations at the time of the sale, but from the orders of the court. Hamilton et als. v. Pleasants, 19 Tex. 638.
When a conveyance is made in fraud of creditors, the parties, or the heirs of the parties to a conveyance, cannot be permitted to impeach it. Danzey et al. v. Smith et al. 4 Tex. 411;McClenny v. Floyd, 10 Tex. 160;Fowler v. Stoneum, 11 Tex. 501;Lewis and Wife v. Castleman, 27 Tex. 407;Hagerty v. Harwell et al. 16 Tex. 663.
D. A. Nunn & A. M. Jackson, for appellees, cited the following authorities: Miller v. Jasper, 10 Tex. 514;Thompson v. Bishop, 29 Tex. 156;Davenport v. Hervey, 30 Tex. 329;Flanagan v. McClusty, 10 Tex. 286;Sewell v. Lowery, 16 Tex. 51;Thompson v. Thompson, 12 Tex. 329.
This case presents a vigorous and spirited contest over the application to it of two well-established rules of law and equity, and which appear to be totally irreconcilable in the case.
The appellant urges the rule of caveat emptor against the appellee, who purchased at an administrator's sale; while the appellee urges the rule against the appellant that “fraud vitiates everything it touches,” even including sales by administrators.
Both of these rules are so well established that a reference to authorities is scarcely necessary. But how must the case stand when these two rules so present themselves in the case that one or the other must yield? Equity must furnish t?? answer.
He who purchases a bad title at an administrator's sale is, at the worst, only guilty of negligence. He has only purchased without due investigation of title. There is no moral turpitude in his conduct. He only purchases with his eyes open, and the rule of caveat emptor applies, because he took the chances without proper investigation. He is only to be regarded as a mere speculator, to win if he buy a good title, or to lose if the title be worthless. The rule applies even perhaps if fraud were apparent on the face of the proceedings, when he had a fair chance, with proper diligence, to detect the fraud or vice in the title he buys at administrator's sale.
But on the contrary, the rule that fraud taints and destroys every act done-- that no man shall be permitted, in a court of justice, to enforce an iniquitous and fraudulent contract, or to profit by acts of fraud, is based on a higher equity. The element of moral turpitude enters into it; it is repugnant alike to the common moral sense of all men, and to the sense of common justice of all courts. It finds no tolerance whatever in a court of equity. Weighed in the balance against mere negligence, the turning...
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