De Witt v. Miller's Adm'r.

• Citation: 9 Tex. 239
• Parties: C. C. DE WITT AND OTHERS v. MILLER'S ADM'R.
• Decision Date: 01 January 1852
• Court: Supreme Court of Texas

9 Tex. 239

C. C. DE WITT AND OTHERS

v.MILLER'S ADM'R.

Supreme Court of Texas.

1852.

As a general rule a question which is in substance a general demurrer to the sufficiency of the plaintiff's petition should, where the defendant appears, be made in the court below. The verdict or decree cures all defects, imperfections, or omissions in the petition or statement of the cause of action, whether of substance or of form, if the issues joined be such as require proof of the facts imperfectly stated or omitted, though it will not cure or aid a statement of a defective title or cause of action. (Note 40.)

Where laches or lapse of time is relied on by the defendant in an action for specific performance it should be set up by plea or special exception in all cases where the plaintiff has not in the petition alleged some grounds in explanation of his apparent laches or delay; in the latter case the defendant is relieved from the necessity of setting up the mere lapse of time.

Where the contract, for the specific performance of which the suit was brought, was of twelve years' standing and there were no equitable circumstances alleged to account for the delay, the court said, The proof must have been of a potent character to have excused so long a delay, but it may have been adduced, and as there is no statement of facts we must presume that the proof, if necessary, was made. (Note 41.)

A suit against a defendant in his individual capacity cannot in any way affect the rights of those interested in an estate of which such defendant may at the time be administrator.

Where assets have been fraudulently alienated by an administrator in collusion with the vendee they may be pursued by an administrator de bonis non, and the fact that a judgment has intervened, if obtained through fraud, cannot affect the principle or vary the rights of the parties. (Note 42.)

Appeal from Bexar. The subject of this controversy was a league of land, being one of three leagues granted to Joseph Clements in 1830 or 1831 by the State of Coahuila and Texas, and in which grant Green De Witt was jointly and equally interested. The said Green De Witt, having choice, selected this league as a portion of his share, and, as the petition averred, sold the same to one Thomas R. Miller, authorizing and requiring, by a written instrument, the said Clements to convey title to the said Miller. Shortly afterwards the said De Witt departed this life and Miller perished at the fall of the Alamo, no conveyance having been previously made by the said Clements in conformity with the written instructions from De Witt to that effect. In 1840 Sarah De Witt, as administratrix of G. De Witt, filed her petition against the said J. D. Clements, praying among other matters that he might be divested of all title in the said league of land, and that the same might be vested in her as the said administratrix. In his answer Clements averred that this land had been sold by Green De Witt in his lifetime to Thomas R. Miller, and that it then formed a part of his estate. By the decree in 1841 it appears that Clements moved that the heirs of Miller might be admitted to appear as defendants and assert the rights derived through their intestate. The motion was overruled and it was adjudged that all the right, title, and interest of Clements be vested in the said Sarah De Witt as administratrix aforesaid, but without prejudice to or preclusion of the rights of the heirs of Miller, if any they had. The land was subsequently sold at public action by the said administratrix and purchased by C. C. De Witt.

The petition in this case was filed in 1846 by J. P. Hawkins, administrator de bonis non of Thomas R. Miller, deceased, and among other things represented that the decree in 1841 was obtained by fraud and collusion between the said Clements and the said administratrix of the estate of De Witt; that the said Clements was at that time the administrator of the estate of the said Miller, and neglected to file a defense for the said estate in the said suit. The petition prayed that the said Sarah De Witt, as administratrix, the said C. C. De Witt, and the representatives of Clements, now deceased, be made parties, and that the title to the said league be fully vested in the heirs of the said Thomas R. Miller. The defendant Sarah De Witt, among other matters, denied all fraud and collusion between her and the said Clements in obtaining the decree of 1841. Averred that she know nothing of any sale or transaction which would authorize a conveyance from the said Clements of the said league to the said Miller, and alleged facts inconsistent with any such supposition.

C. C. De Witt denied all collusion in obtaining the said land or any decree in connection therewith; that he had not nor did he ever have any knowledge of any title, right, or claim existing in Miller or his heirs to the said land. It did not appear when C. C. De Witt purchased or went into possession.

A jury being waived, the court decreed, in effect, that in the lifetime of all the parties, and before a conveyance was made by the said Clements, the said De Witt had sold the land to Thomas R. Miller, and the court, believing from the evidence that the purchase-money had been paid by the said Miller, and that C. C. De Witt had notice of the claim of the heirs of Miller at the time of his purchase at the sale mentioned in his answer, decreed that all the interest of the heirs of the deceased Clements and of the deceased De Witt, and also of C. C. De Witt, should be vested in the plaintiff as the administrator of Thomas R. Miller for the use and benefit of the heirs of the said Miller and others interested in his estate.

It was agreed by the attorneys of the parties that in case the judge had not signed the statement of facts written out by him (no such statement appears in the transcript) the same should be certified as the statement of the case; that it should include all the documents referred to on file, and also the record in the cause of Sarah De Witt, administratrix of Green De Witt, deceased, v. Joseph D. Clements. By agreement, also, the appellants had leave to assign errors in this court. The following were relied upon, viz:

1st. That the facts set forth in the plaintiff's petition do not entitle him to the relief prayed or warrant the judgment or decree of the court rendered in the cause.

2d. That the finding of the court sitting as a jury did not determine the issues between the parties.

3d. That the judgment was not warranted by the finding of the court upon the issues of fact formed by the pleadings.

Webb & Oldham, for appellants. I. It appears from the plaintiff's own showing that the demand set up is a stale demand, and barred by the statute of limitations. The claim of Miller originated previously to the year 1835. The decree in favor of De Witt's administratrix against Clements was rendered on the 8th day of October, 1841, and this suit was not brought until the 26th day of October, 1846. Over twelve years elapsed from the origin of the claim until the institution of this suit, and five years from the rendition of the judgment in the case of De Witt's administratrix against Clements in the Gonzales District Court. The claim had become stale by lapse of time, and the presumption is against its validity. (Sicard v. Davis, 6 Peters, 139;Holt v. Thomas et al., 8 Peters, 420;Lupton v. Janney, 13 Peters, 381;Miller v. McIntyre, 6 Peters, 61;Elmendorf v. Taylor, 10 Wheaton, 168; Johnson v. Johnson, 5 Ala. R., (new series,) 97; Story's Eq., 1520; Smith v. Clay, 3 Brown's S. C., 639, note.)

It was barred by the statute of limitations. C. C. De Witt did not hold in trust for the heirs and creditors of Miller's estate, but in his own right and adverse to them. The administratrix of De Witt recovered the land from the administrator of Miller, who pleaded the title of his intestate.

II. The petition showed a former adjudication in reference to the subject-matter of this suit between proper parties to litigate the same. The interest of the heirs of Miller could only be asserted through the administrator, and a judgment against him is binding upon them. (Holt v. Clemmons, 3 Tex. R., 423; Thompson v. Duncan, 1 Tex. R.; Moore v. Morse, 2 Tex. R.)

If the defendant in that suit had not pleaded the claim of his intestate, it was his duty to have done so, and he would have been bound by the judgment and could not subsequently set up a claim which he had failed to plead in that suit. (Smith v. Power, 2 Tex. R.)

The plaintiff in this suit, as administrator de bonis non, cannot set up the fraud of his predecessor in the administration of the estate so as to avoid the judgment and decree rendered in the former suit. He is not only privy to that judgment, but is in law the party against whom it was rendered, that is, the representative of the estate of Thomas R. Miller, deceased. He can no more set up the fraud of his predecessor than he can that of himself. (Hart. Dig., art. 1224.)

If the former administrator committed a fraud in allowing a decree to be rendered against him, he and his privies are bound by it, and he is responsible upon his bond for maladministration. (Blount v. Darroch, 4 Wash. C. C. R., 659; Walker v. Radcliffe, 2 Desau. R., 577; McClelland v. Chambers, 1 Bibb R., 366; Allin v. Hall, 1 A. K. Marsh. R., 526; Ewing v. Handley, 4 Litt. R., 348.) That was the only remedy. (Evans v. Oakley, 2 Tex. R., 182.)

The saving in the decree of De Witt's Administratrix v. Clements, of the rights of the heirs of Miller, amounted to nothing. The interest of the administrator and the heirs cannot be severed. The administrator is the proper person to assert the right of the heirs. (Holt v. Clemmons, supra.)

III. The finding of the court, sitting as a jury, did not determine the issues between the parties. Before a judgment could have been legally rendered in favor of the plaintiff, it was essential that the fraud in...