Ryan v. Maxey

• Decision Date: 01 January 1875
• Citation: 43 Tex. 192
• Parties: A. P. RYAN ET AL. v. S. B. MAXEY ET AL.
• Court: Texas Supreme Court

43 Tex. 192

A. P. RYAN ET AL.

v.S. B. MAXEY ET AL.

Supreme Court of Texas.

1875.

APPEAL from Collin. Tried below before the Hon. W. H. Andrews.

K. R. Craig and V. W. Hale, for appellants.

Throckmorton & Brown, for appellees.

GOULD, ASSOCIATE JUSTICE.

Appellants, claiming as the heirs of Mariah T. Fulton, deceased, brought this suit to recover of S. B. Maxey one thousand and seventy-two acres of land in Collin county. The other defendants voluntarily made themselves parties and united themselves with Maxey in answering, in substance, as follows: That T. F. Roberts was, at the time of the death of Mariah, in 1864, her lawful guardian and in possession of her property, being at the same time guardian of one of the plaintiffs, Hugh Fulton; that there was no administration on her estate, which was large, but that some of the plaintiffs made application to the probate court in which the guardianship was pending for an order for the partition of said estate, to which proceedings the others of the plaintiffs became parties; that the guardian assumed settling up the existing debts against the estate, asking for an order to sell property to pay the debts, and that with the consent of all of the plaintiffs an order was made for the sale of the land in the controversy and for the partition of the balance of the estate amongst the heirs, the plaintiffs; that in accordance with said order the remainder of the estate was so partitioned, and the land in question sold for its full value, the sale confirmed and deed made by the guardian to the purchaser under whom defendants claim; that the proceeds of the sale were applied to the payment of the debts of the estate, and that to all these proceedings the plaintiffs were parties, and were thereby estopped from claiming the land.

A general exception to this answer was overruled, and a jury being waived the court, after hearing the evidence, gave judgment for the defendants.

The main facts set up in the answer were agreed on, including the fact that the guardian, Roberts, refused to turn over the residue of the estate to the heirs unless the heirs would leave a sufficiency in his hands to meet his liabilities as guardian, and that upon (their) entering into said agreement said residue was distributed. The application to the probate court was made in January, 1865, and prayed for partition, “after reserving sufficient in hands of guardian to pay all debts and expenses.” It further appears that the land in controversy was so reserved and set apart, and that the balance of the estate, including slaves, was at once, in February, 1865, distributed by commissioners appointed by the court, whose action was acquiesced in by the heirs. Afterwards the sale was made, but proper notice not appearing to have been given, it was not confirmed. A resale was ordered, and made in December, 1866, and when the proceeds were collected by enforcing the vendor's lien they were applied to the payment of the debts of the estate approved by the court, the amount proving insufficient by the sum of $200, which was due the guardian himself. The guardian testified that the object of plaintiffs was to avoid the expense of administration and get prompt possession of the property, and that it was agreed by the plaintiffs that the court might order the sale of the land in controversy to pay the debts. Roberts continued to be guardian of plaintiff Hugh for some years after the death of Mariah.

We are of the opinion that the exceptions to the answer were properly overruled, and that judgment was properly rendered for the defendants.

Whether the jurisdiction of the court...