Sypert v. Mccowen's Ex'rs

• Decision Date: 31 October 1866
• Citation: 28 Tex. 635
• Parties: HENRY S. SYPERT v. MCCOWEN'S EXECUTORS ET AL.
• Court: Texas Supreme Court

28 Tex. 635

HENRY S. SYPERT

v.MCCOWEN'S EXECUTORS ET AL.

Supreme Court of Texas.

October, 1866.

Ten years having elapsed since the confirmation by the county court of an administrator's sale of land belonging to an estate, without complaint during that period by any one interested in the estate, it might well be insisted that, in the absence of proof, either pro or con, a compliance by the purchaser with the terms of sale would be presumed as against a party not interested in the estate.

To pass a perfect legal title to land of an estate, sold by an administrator under order of the county court, a conveyance by the administrator, executed according to the statute, is necessary; but it seems that without a conveyance from the administrator a purchaser, upon complying with the terms of the sale as confirmed by the county court, would have in the land an equitable interest sufficient to maintain a suit against a stranger to the estate. Pas. Dig. art. 1328; 19 Tex. 180;27 Tex. 523.

If a purchaser of land at an administrator's sale fail to comply with the terms of the sale, the administrator can and should re-advertise and re-sell the property, and for this purpose a new order of sale is not necessary; but in order to make the defaulting purchaser liable for the statutory damages and for any deficiency in the price obtained at the second sale, the administrator must re-advertise and sell within a reasonable time. Pas. Dig. art. 1333, note 499; 18 Tex. 397.

When ten years had elapsed since an administrator's sale and its confirmation by the county court, and no re-sale was attempted by the administrator, nor any complaint heard from him, or from the heirs, creditors, or any one else interested in the estate, this court inclines strongly to the opinion that, in the absence of proof showing a conveyance by the administrator, or a compliance by the purchaser with the terms of sale, a jury would be warranted in finding, as against a stranger to the estate claiming adversely to it, and to all claiming under it, that the purchaser did comply with the terms of the sale, and thereby acquire all the interest of the estate in the land. It was error, therefore, in such a case for the court below to instruct the jury to find for the defendant on account of the failure of the plaintiff, who claimed under the administrator's sale, to prove a conveyance by the administrator or a compliance by the purchaser with the terms of the sale.

But notwithstanding such error in the charge of the court below, inasmuch as it appears to this court, on inspection of the whole of the record, that the plaintiff's title is fatally defective, for the reason that the estate under which he claims had no title to the land in controversy, the judgment in favor of the defendant must be affirmed.

The custom of the country to give to a person who locates lands a “locative interest” as a compensation for his services cannot create a contract binding the owner of the certificate. To entitle the locator to such an interest in the land, a contract to that effect with the owner of the certificate must be shown. If the locator rendered the services simply at the request of the owner, or of another person with whom the owner had made such a locative contract, the locator might be entitled to pecuniary compensation, but he could not recover an interest in the land located.

APPEAL from Hill. The case was tried before Hon. JOHN GREGG, one of the district judges.

The material facts of this case are stated in the opinion.

No brief for the appellant furnished to the reporter.

M. D. Herring, for the appellees.

SMITH, J.

It is made sufficiently to appear that Mrs. McCracken, by her agent, Jones, in 1843, entered into a valid contract with Moses Evans to locate, survey, and secure the patent to her headright of one league and labor of land at the expense of Evans, he to receive one-half the league as compensation for his services and expenses in the premises.

The record shows that Thomas Sypert located the certificate, had it surveyed, and the field-notes recorded with the district surveyor in 1847, and paid his fees of office; that he died in 1848, and nothing more was done by him or his representatives to secure the patent.

In 1850, Jones, as the agent of his daughter, the said Mrs. McCracken, now Minck, applied for the field-notes at the office of the district surveyor, paid the surveying fees, and received them; that he and his daughter, with her husband, Charles Minck, conveyed the certificate and land to the defendant, McCowen, on the 30th day of September, 1850, for $750, the latter purchasing with notice of the contract with Evans, and he applied to the general land office and had the patent issued to him on the 18th day of December, 1850, as assignee.

The plaintiff, H. S. Sypert, as the administrator of Thomas Sypert, deceased, under order of the county court to sell the land on twelve months' credit, did sell it on the 10th day of October, 1850, to J. R. Harding, and reported the sale to court, and it was confirmed on the 28th day of November, 1850. J. R. Harding conveyed the premises to the plaintiff, the...