Shannon v. Taylor

• Decision Date: 01 January 1856
• Citation: 16 Tex. 413
• Parties: JAMES SHANNON v. WILLIAM S. TAYLOR.
• Court: Texas Supreme Court

16 Tex. 413

JAMES SHANNON

v.WILLIAM S. TAYLOR.

Supreme Court of Texas.

1856.

It is well settled by the decisions of this court, upon general principles as well as by the statute of February 2, 1844 (Hart. Dig. p. 344), that in an action for the specific performance of a contract made by the testator or intestate, for the conveyance of land, it is not necessary that the heirs should be made parties in order to bind them. [1 Tex. 485;2 Tex. 311, 433;3 Tex. 427, 428;11 Tex. 87;20 Tex. 81;24 Tex. 441.]

The simple circumstance that no order of the probate court appears, continuing the term of administration from year to year, under former statutes, will not invalidate the lawful acts of the administrator or executor done in due course of administration. [12 Tex. 285, 440;13 Tex. 314;15 Tex. 557, 604;28 Tex. 732.]

In the absence of fraud, a decree of the district court against an executor or administrator, for the conveyance of land, is conclusive against the heirs. [[[[[4 Tex. 200;7 Tex. 184;18 Tex. 753.]

Where a plaintiff obtained a decree of the district court for one-half of a tract of land against an executor, the executor to have the first choice, and there was no regular partition, but the heirs divided the tract in two, and then divided the south half amongst themselves, it was held that the plaintiff could maintain an action of trespass to try title against one of the heirs, who intruded upon the north half. [9 Tex. 25;24 Tex. 441.]

See this case as to presumption of the novation or renewal of an illegal contract, after the removal of the legal inhibition.

Where evidence offered by the appellee had been excluded, the court said: The evidence in question ought clearly to have been admitted, and if admitted the verdict could not legally have been different; and it is manifest the result must be the same upon another trial; and, as applications for new trials and the granting of them depend upon equitable principles, we think it may well be held that a new trial in this case was rightly refused, and, consequently, that the refusal of it does not require a reversal of the judgment, though the evidence admitted should be deemed insufficient to warrant the verdict.

An objection that the petition, in an action of trespass to try title, was not indorsed to the effect that the suit was brought as well to try title as for damages, cannot be taken in arrest of judgment. [14 Tex. 564;18 Tex. 233.]

Appeal from Walker. Tried before the Hon. Constantine W. Buckley.A. P. Willey and Peter W. Gray, for appellant.

Yoakum & Branch, for appellee.

WHEELER, J.

The record presents a history of the actings of the parties in interest, in relation to the subject of the present controversy, extending through a period of twenty years, and various rulings of the court upon the trial, which, in the view we entertain of the merits of the case, it does not become necessary to examine in detail. The decision of the case, in our opinion, depends upon the application of the well settled rules of law to a few evident and indisputable facts disclosed by the record, and does not necessarily involve an inquiry into all the various questions which were raised upon the trial and have been examined with unusual research and ability by counsel for the appellant. Interesting as the examination of those questions might be, with the aid of the ample arguments of counsel, as it is not essential to the decision of the case, we shall decline to enter upon it, and shall direct our inquiries to the matters of fact and of law which we deem necessary to our decision.

It appears by the records of the probate and district courts of Montgomery county that John Shannon, the ancestor of the defendant (now appellant), departed this life in 1838, testate, having received a title to the league of land, a part of which is the subject of this suit; that Jacob Shannon and William Burney qualified as his executors under the will, and received letters testamentary thereupon at the June term of the probate court of Montgomery county, in the same year. Subsequently one of the executors, Burney, departed this life, and his co-executor, Shannon, continued in the exercise of his trust, as sole surviving executor, by authority of the probate court, so recognized by the heirs of the testator until final settlement was had and he was discharged by order of the probate court, at its May term, 1853.

In 1841, the plaintiff, as sole heir of Thomas Taylor, deceased, in the then republic, brought suit in the district court against the heirs and legal representatives of John Shannon for the specific performance of a contract by which, in his lifetime, he had agreed to convey to the plaintiff's ancestor one-half of his headright league of land. The case was continued from term to term until the spring term, 1845, when the surviving executor, Jacob Shannon, appeared and answered as the representative of the estate; and thereupon the final judgment of the district court was rendered, decreeing a specific performance of the contract, and that the executor, as the sole surviving representative of the estate, convey to the plaintiff a title to the undivided half of the league of land, according to the terms of the contract; which were, that the league should be divided into two parts, as nearly equal as possible, the said Shannon to have the first choice. This decree was not appealed from, but remains the judgment of the court.

There can be no question, that, if this decree was binding upon the heirs, it finally and conclusively determined the rights of the parties to this suit, as respects the matters adjudicated therein; vesting in the plaintiff the title to the undivided half of the league of land in question, subject only to the election of the legal representative of the estate or the heirs in the choice of halves, upon a division or partition. But the court refused to admit it in evidence, and it is insisted that it was rightly excluded, for two reasons: 1st. Because the heirs were not made parties by the service of process upon them. 2d. Because the functions of the executor had ceased and were determined by operation of law.

To the first objection it must be answered, that it is well settled by the decisions of this court that, in an action for the specific performance of a contract made by the testator or intestate for the conveyance of land, it is not necessary that the heirs should be made parties in order to bind them. For the purpose of such a suit, the executor or administrator, under the laws as they existed at the time of the rendition of this decree, is the representative of the heirs, in respect as well of the realty as of the personalty. (Thompson v. Duncan, 1 Tex. 485;2 Id. 311;3 Id. 427-28;Graham v. Vining, 2 Id. 433;Ottenhouse v. Burleson, 11 Id. 87.) Such suits were expressly authorized by statute to be brought in the district court against executors and administrators, and it was declared that the decree should vest a title as good as if it had been made by the deceased in his lifetime. (Act of the 2d of February, 1844, Hart. Dig. p. 344.) This statute was in force when the decree in this case was rendered; and if, when the suit was brought, it would have been necessary to make the heirs parties, the necessity had been dispensed with by the statute, when the decree was rendered. The decree was as effectual to bind them as if they had been made parties to the suit by the service of process upon them, as well by this statute as by the general principles and provisions of the laws regulating the settlement of estates. (See the cases before cited.) This objection to the decree, therefore, is not tenable.

Nor is the remaining objection well founded in fact or in law. It does not appear by the record that the functions of the executor had ceased. On the contrary, it appears that he continued to act as executor by authority of the probate court, and that he was recognized by the heirs as the rightful executor of the estate until long after the rendition of this decree. Some, if not all of the heirs who were of age, expressly recognized his authority in judicial proceedings in the probate court; by appointment of the court he acted as the guardian and representative of those who were not of age, in proceedings to which all the heirs were parties; his authority to act in the capacity of executor does not appear ever to have been questioned or doubted, but, on the contrary, it was sanctioned and approved by the action both of the court and the heirs. The objection rests upon the single circumstance that no order of the court appears, continuing the term of his administration from year to year. But no case has decided that this was sufficient to invalidate his lawful acts done in the due course of administration. On the contrary, it has been held that an extension of the term of administration will be presumed, if necessary, to sustain the validity of such acts, when thus drawn collaterally in question. It is settled by repeated decisions of this court, that, where the fiduciary character of one acting as administrator has been recognized by the probate court, as between the heirs and those dealing with the acting administrator, his authority cannot be thus drawn in question in a collateral action, for the purpose of invalidating his lawful acts, done in the due course of admistration. (Hurt v. Horton, 12 Tex. 285;Poor v. Boyce, Id. 440;Howard v. Bennett, 13 Id. 314 to 316; Dancy v. Stricklinge, 15 Id. 557;Burdett v. Silsbee, Id. 604.) A fortiori, the authority of the executor cannot now be drawn in question by the defendant in this action, for the purpose of invalidating a solemn judgment of the court, rendered in a cause in which he was party representing the estate, when it is shown that he was acting as executor with the sanction of the probate court, and was recognized as the rightful executor by the present defendant and the other heirs. The right...