Appeal from district court, Jones county; C. P. Woodruff, Judge.
Trespass to try title by S. D. Warfield and others against T. E. Shirley, L. A. Scott, and others. From the judgment, defendants, other than Shirley and Scott, appeal. Reversed.
C. M. Christenberry, for appellants. Kirby & Kirby, for appellees.
Conclusions of Fact.
STEPHENS, J.
The district court entered judgment in favor of appellees, as the heirs of James H. Warfield, for all the land sued for except the part claimed by T. E. Shirley and L. A. Scott, upon the following conclusions of fact, which we approve, except the last clause of the second finding:
"(1) The James H. Warfield survey No. 10, in Jones county, Tex., the land in controversy, made by virtue of certificate No. 984, issued by the board of land commissioners of Harris county, on December 2, 1850, was patented, on August 3, 1853, to the heirs of James H. Warfield, by patent No. 528, vol. 7. (2) James H. Warfield, the party to whom the certificate above mentioned was issued, enlisted, in Kentucky, as assistant quarter-master in the army of Texas, in 1836, and served as such, in Texas, from January 6, 1837, till July 1, 1837, and was a volunteer from a foreign country. (3) James H. Warfield, the party to whom the certificate issued, and to whose heirs the land in controversy was patented, died in Harris county, Tex., in 1839, and plaintiffs in this suit are the sole heirs of said James H. Warfield. (4) One Aug. C. Daws, on December 16, 1850, filed in the county court of Harris county, Tex., his application for letters of administration upon the estate of said James H. Warfield. (5) At the December term of said court letters of administration were granted, as prayed for by Daws. (6) By order of said county court said administrator sold said James H. Warfield land certificate to pay costs of administration, said sale being made to W. R. Baker, the clerk of said court. (7) Said sale was reported to said court at its February term, 1851, and at same term approved by said court, and a deed was ordered to be made to said W. R. Baker, which was done, February 25, 1851, the purchase money having been paid. (8) Jesse M. Kirkland, through whom defendants T. E. Shirley and L. A. Scott claim an undivided one-third of the land in controversy, received a deed to said one-third of said land on February 3, 1883, which was recorded in Jones county, Tex., March 5, 1883. (9) Defendants T. E. Shirley and L. A. Scott introduced a regular chain of deeds from W. R. Baker, through Jesse M. Kirkland, to themselves, for one-third undivided interest in the land in controversy, which said deeds are duly recorded in Jones county. (10) Defendants T. E. Shirley and L. A. Scott, and those under whom they claim, have had possession of one-third of the land in controversy, claiming and holding same under deeds duly registered, and paying all taxes due on same, for five years prior to the institution of this suit. (11) Defendants, other than Shirley and Scott, have had no possession of the land claimed by them, but have paid taxes on two-thirds of the land in controversy for five years prior to the filing of this suit. (12) Plaintiffs Susan V. Browder, Amanda M. Sypert, P. W. Hendrick, Bettie B. Bradley, Huldah B. Wood (by coverture), and plaintiffs Charles M. Warfield, Louis Minter Warfield, Alice Vivion
Warfield, and George Merriwether (by infancy), are not affected by any statute of limitation."
From this judgment the defendants, other than Shirley and Scott, deraigning title to an undivided two-thirds interest under the administration sale to W. R. Baker, prosecute this appeal. There is no evidence in the record that any of the parties claiming under said administration sale were purchasers for value or without notice of its alleged invalidity, unless such inference be justified by the mere existence of their chain of title. The controversy, then, turns upon the effect of the administration proceeding, which culminated in that sale, as follows:
Petition, filed December 16, 1850:
"To the Hon. H. H. Allen, Chief Justice of Harris County: Your petitioner, A. C. Daws, represents that Jas. H. Warfield died, A. D. 1839, in Harris county, intestate; that he was possessed of property, and owed debts. And your petitioner further represents that he has been requested by a creditor to apply for letters of administration on said estate, which he prays your honor to grant. Aug. C. Daws.
"Sworn to and subscribed December 16, 1850. W. R. Baker, Clerk.
"Notice of this application was this day given by me as the law directs. December 16, 1850. W. R. Baker, Clerk."
From the minutes, December term, 1850:
"In the Matter of the Application of Augustus C. Daws for the Appointment of Administrator of This Estate, Filed December 16, 1850. It appearing to the court that legal notice of the same was given, as the law requires, by the clerk, and no one appearing to contest and oppose the said appointment, it is therefore ordered, adjudged, and decreed by the court that Augustus C. Daws be, and he is hereby, appointed administrator of this estate, with the full powers as such under the law, and subject to the orders of court."
Oath and bond, filed December 30, 1850:
"I, A. C. Daws, do solemnly swear that Jas. H. Warfield died without any lawful will, so far as I know or believe, and that I will well and truly administer all and singular the succession of the said deceased, and return a true inventory thereof, so far as the same may come to my knowledge, and a just account of sales, and of my administration, as required by law. A. C. Daws.
"Sworn to and subscribed before me, at Houston, this 30th day of December, 1850. W. R. Baker, Clerk."
"The State of Texas, Harris County. Know all men by these presents, that we, A. C. Daws, as principal, and ____, as sureties, are held and firmly bound unto the chief justice of the county of Harris in the sum of one hundred dollars, for the payment of which, well and truly to be made unto the said chief justice, we bind ourselves, our heirs, our executors, and administrators, jointly and severally, firmly by these presents. Signed with our hands and sealed with our seals (scrawls for seals) the 30th day of December, A. D. 1850. The condition of this obligation is such that, whereas, the above-bound A. C. Daws has been appointed administrator of the estate of J. H. Warfield, deceased: Now, if the said Daws shall well and truly perform all the duties required of him under said appointment, and shall pay all cost of court in the matter of said estate, then this obligation shall be null and void; otherwise, to be of full force and effect. J. De Cordova. Aug. C. Daws. [Seal.] W. R. Baker. [Seal.]
"Signed, sealed, and acknowledged before me, at my office in Houston, this ____ day of ____, 185_."
From the minutes, December term, 1850:
"The bond and inventory filed by the administrator of this estate is hereby approved.
"Estate of J. H. Warfield, Deceased. Petition for Sale, Filed December 31, 1850. To the County Court of Harris County: Your petitioner, A. C. Daws, administrator of estate of J. H. Warfield, deceased, represents that all the property of said estate consists of a 640-acre headright certificate, issued to deceased by the commissioners of Harris county, No. 984, dated December 2, 1850, and the conditional certificate; that costs are due to the officers of court in said estate for about seventy-five dollars. He prays, therefore, for an order to sell said land certificates. Aug't C. Daws.
"Sworn to and subscribed December 31, 1850. W. R. Baker, Clerk."
From the minutes, December term, 1850:
"Estate of J. H. Warfield, Deceased. Order to Sell. In the Matter of the Application of the Administrator for a Sale of the Conditional and Unconditional Certificate of Headright of Deceased. It is therefore ordered, adjudged, and decreed by the court that Augustus C. Daws, administrator of this estate, proceed to sell, at public auction, to the highest bidder, on a credit of twelve months, on the first Tuesday of February, A. D. 1850, according to law, at the courthouse door of Harris county, after giving twenty days' notice, for the purpose of paying the costs, the conditional and unconditional headright certificate granted to decedent by the commissioners of Harris county, together with all the privileges appertaining and belonging thereto, as described in the petition for sale filed this day."
"Estate of J. H. Warfield, Deceased. Account Sales, Filed February 5, 1851. I, Aug't C. Daws, administrator of the estate of J. H. Warfield, deceased, beg leave to report to the county court that, in obedience to an order of said court, entered at the December term, 1850, and according to said order...
