Ackerman v. Smiley

| Tex. | Jul 1, 1873

Ogden, J.

On the death of a person intestate, all of his estate, both real and personal, vests, at once, in his heirs at law, subject, under the statute, to the payment of his debts. (Paschal’s Digest, 1373.) But the legal title and interest of the heir becomes fixed, and, whatever that interest may be, it is clearly the subject of sale and transfer, as though it were not encumbered with the debts of the ancestor. The heir may, therefore, sell or alien at his pleasure his entire interest in the estate of an ancestor, or he may sell his entire interest in any particular portion of that estate, and the courts will protect the purchaser in the interest thus conveyed to him, subject to the rights of other heirs. The heir may make a present deed of his interest, in any particular portion of the estate, or may give a bond to make a full title when the same shall be set apart to him, and that deed or bond may be enforced against all third parties.

The purchaser of an estate, with covenants of warranty, takes not only the equitable title of the vendor at the time of the sale, but he also takes whatever title the vendor may after-wards acquire, whether by purchase or otherwise. (4 Kent, 98; Wark v. Willard, 13 N. H. 389; Bush v. Marshall, 6 Howard, U. S., 284; Brower v. McCormick, 4 Watts, 60; Nixon’s heirs v. Carco’s heirs, 28 Miss., 414" court="Miss." date_filed="1854-10-15" href="https://app.midpage.ai/document/nixons-heirs-v-cargos-heirs-8256810?utm_source=webapp" opinion_id="8256810">28 Miss., 414; 2 Sugden on Vendors, 689; Logan v. Steel, 4 Monroe, 433; and Mays v. Lewis, 4 Tex., 38" court="Tex." date_filed="1849-12-15" href="https://app.midpage.ai/document/mitchell-v-zimmerman-4887164?utm_source=webapp" opinion_id="4887164">4 Texas, 38.) If, therefore, appellee in 1866 bona fide purchased Wickson’s interest, as heir, in the land in controversy, and took a bond for a perfect title, and Wickson subsequently purchased the same land at administrator’s sale, whatever title he might then receive he would take the same in trust for his vendee. It appears that after the purchase by appellee from Wickson, and after he had received a bond for title to the land in controversy, in order to obtain immediate possession of the land thus purchased he bought out the lease of Middleton, which had about one year to run, and has occupied the premises under his purchase since that time. Under such circumstances, if appellee purchased the fee from Wickson, and then purchased the intervening lease from Middleton, then the lease became merged in the greater title, and he acquired the possession not as a lessee but as purchaser, and his possession, under his bond for title duly recorded, would be notice to the world of his claim under that bond. The bond from Wickson to appellee was duly executed and recorded, and states the consideration to be four thousand seven hundred dollars. We think there can be no question of Wickson’s right to sell his interest as heir, at the time he did, provided he did so in good faith, and not for the purpose of defrauding his creditors, if at that time he had any.

We have been unable to discover in the record any sufficient evidence of fraud in that sale from Wickson to appellee, to render the same void or voidable. It appears that for some ,cause the land sold by Wickson was not partitioned to him, as was anticipated at the time of his sale to appellee, but was ordered to be sold at administrator’s sale. Wickson had executed his bond for. title, and it is claimed that to save himself from a demand for damages, and to fulfill the stipulations of his b.ond, he became the purchaser. If his sale to appellee was bona fide for a consideration paid, then it was clearly Wickson’s right and duty to do so, and his purchase enured to the benefit of his vendee, who took the same free of all claims or demands which had or might arise against the vendor. It is not claimed that at the time of the sale from Wiekson to appellee in 1866, there was any judgment lien outstanding against the property of the former, to prevent him from making sale of his interest in the land in controversy; and if the sale was made in good faith, simple creditors have no power to question it.

But it is claimed by appellant that at the time of the pretended sale to appellee Wiekson was largely in debt, and that the sale was made for the purpose of defrauding his creditors out of their just demands, and also that the appellee Smiley, with a full knowledge of that fraudulent intent, received the title bond without paying anything therefor, and with the sole object and purpose of aiding Wiekson in defrauding his creditors, and that, therefore, his bond for title was without consideration, fraudulent, and void. These were questions of fact, to be determined by the jury under proper instructions from the court, and upon those facts a correct determination of this cause depends. In the charge of the court in regard to these questions, we have been unable to find the errors claimed by counsel for appellants. On the contrary, we think the law was clearly and fairly presented to the jury, by which their minds were directed to the most material facts proven. The jury, in finding a verdict for the defendant below, thereby decided that the sale by Wiekson tet appellee was a iona fide one, and vested in the vendee the equitable title to the land, free from the claims of the vendor’s creditors. We are bf the opinion that a review of the material facts of this case will clearly show the legality of that verdict.

^B In 1866, L. B. Wiekson, supposing that he was the heir to a certain tract of land which would soon be partitioned off to him, sold the same to Henry Smiley, executing to him a bond in the sum of four thousand seven hundred dollars, for a complete title whenever the same should be set apart as his portion as heir. It is probable that, at the time, Wiekson was in debt, and it is in proof that he was then selling off his property as fast as he could; but these facts, independent of other circumstances, could hardly he considered evidences of fraud or a fraudulent purpose, and if they were, still there is no proof that Smiley had any knowledge of those facts, or was in any way connected with the fraudulent intent. The land was not partitioned to Wickson, but was sold at administrator’s sale, in 1867, and Wickson became the purchaser, for the purpose, as he said before, at the time of, and after the sale, of enabling him to comply with his bond for title to Smiley; and when the administrator reported the sale to the probate court, for confirmation, Wickson, by himself and attorney, appeared and asked an order of the court that the title be made directly to Smiley, as he was the equitable owner. But this act of justice was prevented by the attorney of appellant, who persuaded the court to order the deed made to Wickson, for the purpose, as it would appear from his own declarations, of subjecting the land to the satisfaction of a judgment against Wickson. We think the probate court, upon a proper representation that Smiley was the equitable owner of the land, for whose benefit the purchase was made, should have ordered the deed to be executed directly to him.

It is, however, claimed that Smiley had paid no consideration for the land, and therefore had no such equities as could defeat appellant’s title by virtue of an execution sale against Wickson. But we think it clearly proven that Smiley did pay a consideration for the land. The bond from Wickson to Smiley recites the fact that the sale was made in consideration of the sum of four thousand seven hundred dollars. And Thompson, while on the stand as appellant’s witness, testified that Wickson had acknowledged to him the receipt of the purchase-money. He also proved that Smiley paid a part of the purchase-money at the administrator’s sale. We. are of the opinion that this testimony was legitimate, and especially when the acknowledgment was proven to have been made long before the administrator’s sale, and before the appellant’s claim to any rights in the land conld have had an inception. We think this testimony establishes beyond a reasonable doubt the T)ona fide character of the sale from Wickson to Smiley, and that the consideration had been paid; and if these are the facts of the case, then appellee has a good and indefeasible title, that cannot be affected by any sheriff’s sale under execution against Wickson. There is no error in the judgment of the District Court, and it is affirmed.

Affirmed.