Yerby v. Hill

• Decision Date: 01 January 1856
• Citation: 16 Tex. 377
• Parties: JANE F. YERBY v. WILLIAM G. HILL, EX'R.
• Court: Texas Supreme Court

16 Tex. 377

JANE F. YERBY

v.WILLIAM G. HILL, EX'R.

Supreme Court of Texas.

1856.

The purchaser of property at a sale by order of the probate court purchases subject to the authority of the court to confirm or set aside the sale.

He is bound to take notice of the action of the court in this regard; and if aggrieved by it, his remedy, if any, is by appeal.

Appeal from Brazoria. Tried before the Hon. Nelson H. Munger.

Suit by a bidder at a probate sale (the appellant) to whom the property had been knocked down, against an executor, the appellee, to enforce the specific performance of the sale. After alleging the indebtedness of the state, secured by mortgage on the land; the petition of the creditor for order of sale; order for sale, and advertisement, the petition continued as follows: On the day last mentioned (first Tuesday in April, 1855), in front of the court house door of said county, between the hours of ten o'clock A. M. and 4 o'clock P. M., the said Hill, as executor aforesaid, offered said tract of land for sale, by public outcry, in pursuance of said order of court, upon the terms mentioned therein (on a credit of twelve months, the purchaser to give bond and security, and a mortgage on the land), and that at the time and place last mentioned your petitioner bid for said land fourteen hundred and thirty dollars; that that was the highest and best sum offered, and that said land was struck off and adjudged by said Hill to your petitioner, as the purchaser, at said price; and that said Hill promised petitioner, after said sale, as executor aforesaid, to make due return of said sale, and that his attorney would attend to the whole matter and procure and execute to your petitioner the necessary and legal conveyance for said land. And petitioner avers that she was, and always has been, and now is, ready to comply with the terms of said sale, and has offered to comply with the same. Your petitioner further represents, that she went into the possession of said tract of land, and since the said first Tuesday in April, 1855, your petitioner has been in the possession thereof, and has, in virtue of her said purchase, made valuable and permanent improvements on said land, and has put in cultivation about sixty acres of said land. Your petitioner further represents, that within the last few days she has learned that the said Hill, as executor aforesaid, is seeking to avoid the said sale to petitioner, and has refused to make proper conveyance to petitioner, and refuses to accept from petitioner the terms upon which said sale was made, and utterly refuses to comply with said sale, or make return thereof to the county court aforesaid; and, as excuse for the said conduct of the said Hill, executor aforesaid, he gives out and pretends that your petitioner was to give him the sum of twenty-four hundred dollars for said tract of land. Now your petitioner alleges and charges, that no such agreement or understanding was ever made or had by her or with her or any other person for her; and alleges that she never, directly or indirectly, promised or agreed to give or pay any sum whatever for said tract of land, except the said sum bid for said land as aforesaid; and she alleges that the said sum of fourteen hundred and thirty dollars is a fair and reasonable price for said land. Your petitioner further represents that said Hill, as executor aforesaid, has presented on the 29th day of May, 1855, by his attorney, a petition to the county court aforesaid, and has procured a decree of said county court to readvertise and sell the tract of land, and she attaches hereto copies of said petition and order of sale, as a part hereof. She further represents that the said Hill, as executor aforesaid, has again advertised said tract of land to be sold on the first Tuesday in July, 1855, and that he threatens to sell the same on said day; that the actings and doings aforesaid of the said Hill are unjust and oppressive; and that the said last named order of the county court is illegal and void; that if said sale takes place your petitioner will be greatly injured and wronged. Wherefore your petitioner prays that your Honor will enjoin and restrain the said Hill from making any sale of said tract of land until the further action of the district court of said county, and that the said county court be enjoined from making any other or further order touching the sale of said land; and that upon the final hearing hereof, the said Hill, as executor aforesaid, be ordered to make report of said sale, and make a conveyance to your petitioner of the tract of land aforesaid, upon your petitioner complying with the terms of said sale. And petitioner prays for all such other and further relief in the premises as in law and equity she is entitled to, and for the costs of suit; and she...