Wilkin v. Geo. W. Owens & Bros.

• Decision Date: 22 February 1908
• Citation: 110 S.W. 552
• Parties: WILKIN v. GEO. W. OWENS & BROS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

110 S.W. 552

WILKIN v. GEO. W. OWENS & BROS.^*

Court of Civil Appeals of Texas.

February 22, 1908.

On Rehearing, March 28, 1908.

Appeal from District Court, Hale County: J. N. Browning, Judge.

Trespass to try title by R. H. Wilkin against Geo. W. Owens & Bros. From a judgment for defendants, plaintiff appeals. Affirmed.

Randolph & Penry and J. C. Randolph, for appellant. Prendergast & Williamson, for appellees.

SPEER, J.

This is an action of trespass to try title, brought by appellant against appellees, to recover 7½ acres of land out of the E. L. Lowe pre-emption survey in Hale county, Tex. There was a trial before the court without the intervention of a jury, resulting in a judgment in favor of the defendants.

The correctness of the judgment appealed from depends upon the effect to be given to the proceedings of the probate court of Hale county in the matter of the estate of E. L. Lowe, resulting in the sale of the land in controversy by the administrator, through which sale the appellees deraign title. The application of C. H. Gilbert, the regularly appointed administrator of the estate of E. L. Lowe, deceased, to sell is as follows: "Your petitioner, C. H. Gilbert, administrator of the estate of E. L. Lowe, deceased, respectfully represents to said court that there is a certain tract of real estate belonging to the said estate of E. L. Lowe, and said real estate is here described as all those lots yet unsold, being situated in the county of Hale and state of Texas, and further known as the north half of the town of Plainview, patented to E. L. Lowe by virtue of the pre-emption laws of the state of Texas. Your petitioner further represents that it is necessary for the support and maintenance of the heirs and best interest of said estate that said property, hereinbefore described, be sold at private sale for cash, or on such terms as you may think best for said estate." The order of sale is as follows: "Now comes on to be heard the application of C. H. Gilbert, administrator of the estate of E. L. Lowe, deceased, asking that an order of court be granted to sell at private sales certain lots in the town of Plainview, Tex.; and, it appearing to the court that it is necessary for the support and maintenance of the heirs that said property be sold, it is therefore ordered and adjudged by the court that C. H. Gilbert, the administrator of the estate of E. L. Lowe, deceased, be granted full power to sell so much of the real estate belonging to said estate, situated in the town of Plainview, as is necessary for the support and maintenance of said heirs, and that said sales be made in private and for cash and on a credit as may be in the mind of the said administrator to the best interest of said estate."

The inventory filed by the appraisers showed that the estate of E. L. Lowe, deceased, owned a large number of lots in the town of Plainview, as well as the 40 acres constituting the northeast portion of the E. L. Lowe survey, and other acreage property. The record shows that the land in controversy was wholly outside of the town of Plainview, although it adjoined it on the north. The order...