Robertson v. Johnson

• Decision Date: 09 May 1882
• Docket Number: Case No. 3008.
• Citation: Robertson v. Johnson, 57 Tex. 62 (Tex. 1882)
• Parties: J. C. ROBERTSON ET AL. v. S. E. JOHNSON ET AL.
• Court: Texas Supreme Court

57 Tex. 62

J. C. ROBERTSON ET AL.

v.S. E. JOHNSON ET AL.

Case No. 3008.

Supreme Court of Texas.

May 9, 1882.

APPEAL from Lamar. Tried below before the Hon. John C. Easton.

On November 8, 1870, this suit was brought by appellees, as heirs of W. H. Merrill and wife (both dead), to recover three hundred and twenty acres of land in Lamar county from appellants. Appellees claimed that they were the only surviving heirs of Merrill and wife, and as such the owners of the land in controversy; that there was a pretended sale of the land made by their guardian, P. J. V. Horton, in 1860, under a pretended order of the probate court of Hunt county; that Frank Miles pretended to purchase the land at such sale, and appellants claimed different portions of the land by mesne conveyances from him. It was claimed that such sale was void, and that no title passed to Miles by reason thereof; that there was no valid order of sale; no report of the sale made by the guardian; no confirmation of the sale by the court; and that the sale had never been completed.

Separate answers were filed by appellants, asserting that they purchased in good faith and hold under their respective deeds, giving their respective claims by metes and bounds. They also asserted that the guardian's sale was made in accordance with law; that the proceedings were fair and regular; that the land sold for a full price; that the purchase money was paid; that the appellees received the benefit of it; and they claimed title through that sale.

The cause was tried December 9, 1875, and resulted in a verdict and judgment for appellees, from which this appeal was taken. Hardin Hart was a defendant, and against him there was no verdict; but by the judgment of the court he was discharged and recovered costs against appellees. He was not a party to this appeal.

Upon the trial a transcript of the proceedings of the probate court of Hunt county, in the matter of the guardianship, was introduced in evidence. It was meager and appears to be incomplete.

The questions involved will be sufficiently shown in the opinion, without reference to the several assignments of error.

Maxey, Lightfoot & Gill, for appellants.

E. L. & H. H. Dahoney and Jas. A. Poague, for appellees.

WATTS, J. COM. APP.

Appellants claim title to the land in controversy through a guardian's sale, and the appellees assert that the order of sale is void, because no description of the land is given in the same. This objection to the right of appellants to recover cannot be maintained, either upon the authorities or from the record. The provision of the statutes then in force, requiring the order of sale to describe the property, like that requiring the administrator to make an application for the sale, accompanied by an estimate of the expenses of administration and a list of claims against the estate, verified by the affidavit of the administrator, is held to be directory. Davis v. Touchstone, 45 Tex., 497; Kleinecke v. Woodward, 42 Tex., 310. An order of sale has been sustained in which no description was attempted to be given of the land ordered to be sold, or any mention by name, designation or description of any particular tract of land. Well?? v. Polk, 36 Tex., 126.

In this case the order of sale empowered the guardian to sell at the court-house door in the town of Paris, Lamar county, “three hundred and twenty acres of land known as the headright of William H. Merrill,” etc. As was said by the present chief justice in Davis v. Touchstone, supra, “The description in these orders is not such as should have been given, but it cannot be said to give no data for identification.” Here if, as recited in the order, the three hundred and twenty acres of land was known as the headright of William H. Merrill, it appears that this would furnish affirmative matter by which the land might be identified. We do not think the order of sale is void for a want of description of the property directed to be sold.

Appellees also urge as an objection to the guardian's sale that the court had no jurisdiction to order the same, because it does not affirmatively appear that the guardian had presented a petition asking for such an order. This objection is not maintainable. Justice Wheeler, in the case of Alexander v. Maverick, 18 Tex., 196, used the following language: “It does not affirmatively appear by the record in this case that the application was not made by a petition in writing. But if it did so appear, I apprehend it could not, on principle, be held to defeat the probate court of its jurisdiction to order the sale on the application of an administrator; nor could the purchaser be affected by the irregularity, if such it was, in making the order. He was not required to look beyond the judgment of a court of competent jurisdiction.” See, also, Guilford v. Love, 49 Tex., 735. This disposes of the questions urged by appellees as conclusive against the right of appellants under the guardian's sale, and brings us to the consideration of the points relied upon by appellants for a reversal of the judgment. These we will consider in that order which is most convenient.

The objection to the judgment, that it does not dispose of the case as to the defendant Hart, is not sustained by the record. Under the charge of the court, the verdict of the jury was in effect a finding in his favor, and it was so...