Rose v. W. R. Newman

• Decision Date: 01 January 1861
• Citation: 26 Tex. 131
• Parties: JOHN W. ROSE v. W. R. NEWMAN AND OTHERS.
• Court: Texas Supreme Court

26 Tex. 131

JOHN W. ROSE

v.W. R. NEWMAN AND OTHERS.

Supreme Court of Texas.

1861.

However plenary the powers of the county court may be upon the subject of a partition of a deceased person's estate, yet, when a sale of the property becomes necessary to carry out the partition, such sale must be made by the administrator, and cannot be made by a commissioner appointed by the county court for the purpose, so as to divest the title of the heirs.

The appointment by the county court, of a commissioner to make sale of lands of an estate, for partition among the heirs, is not warranted by law, and a sale so made conveys no title to the purchaser.

If there is no administrator, there can be no sale until one is appointed;-- the estate being vested in the heirs, subject only to such disposition of it as may be necessary to be made by the administrator under the orders of the court, to pay debts, make partition and the like. [9 Tex. 13;12 Id. 285;28 Id. 732.]

Chief Justice WHEELER dissents in part from the above.

A deputy clerk of the county court is authorized by law to take proof of deeds, etc., for record. An obiter dictum to the contrary in the case of Miller v. Thatcher, 9 Tex. 482, dissapproved. [9 Tex. 482;30 Id. 31.]

APPEAL from Gonzales. Tried below before the Hon. Fielding Jones.

The appellant, Rose, brought this suit against W. R. Newman, H. Grigg, as administrator of Susan Ann Stephenson, and F. Chinault, for the purpose of obtaining a partition of a league and labor of land, the headright of Newman, situated in Gonzales county. The plaintiff claimed a one-sixth undivided interest in the tract by virtue of title deraigned from Newman.

The defendant, Chinault, claimed all or nearly all of the tract, also by titles under Newman. To the extent of 2,952 acres, derived through Susan Ann Stephenson and Grigg, her administrator, Chinault's title was conceded by the plaintiff. But Chinault claimed a further interest of one-third undivided part of the league and labor. This interest originated in a written contract, dated in March, 1838, between Newman and Byrd Lockhart, by which the former employed the latter to locate his headright certificate and clear out the patent from the government, at Lockhart's sole expense, for which service Lockhart was to be entitled to one-third of the land. Lockhart died in 1839, and the land was patented to Newman in 1845. It does not clearly appear in the evidence that the location was made by Lockhart, though there was a receipt to him as “agent” of Newman for the public dues upon twenty-six labors of land, dated March 27, 1839.

In October, 1853, certain persons, representing themselves as “the heirs and assignees of the heirs of Byrd Lockhart,” filed in the county court of Gonzales county their petition, of which the purport is set forth in the opinion, which also shows the manner in which Chinault derived his claim to the locative one-third interest of Lockhart.

The contract between Newman and Lockhart was proved for record before a deputy clerk of the county court of Gonzales county.

At the April term, 1856, this cause came to trial, and, a jury being waived, the court decreed that Chinault should first recover the 2,952 acres to be set apart to him where he should select; that he should also further recover one undivided third of the league and labor to be set apart to him, and that Rose, the plaintiff, should recover the remainder of the tract.

G. M. Reid, for the appellant.

Stewart, for the appellees.

ROBERTS, J.

The evidence was not sufficient to sustain the decree in this case. The proof of the performance of the contract for the location of the land by Lockhart was barely sufficient, if the case rested on that alone. But the title of Chinault to Lockhart's locative interest derived through the commissioner, S. B. Conley, judged by the facts presented in this case, is not complete.

Certain persons representing themselves as the heirs and assignees of the heirs of the estate of Lockhart, represent to the county court of Gonzales county, in a petition filed by them, that the estate had been previously administered and closed; that a number of land claims, being interests for location, evidenced by bonds, etc., had not been disposed of during the previous administration; that an administration de bonis non was then pending; that said claims would be worthless under an ordinary partition amongst those interested in them; that a bond had been given by the heirs for the payment of all the debts due from said estate, and they pray that these claims may be sold without any lien, and that the proceeds be divided amongst those interested. The court granted an order in accordance with their prayer, and appointed S. B. Conley a commissioner to sell said claims and make title thereto, which he did. At said sale F. Chinault, who was one of the...