31 Tex. 344 | Tex. | 1868
Lead Opinion
—This is a somewhat novel case. Its novelty arises from the very peculiar and unique character of our administration laws. It is a suit brought by the demandant, in the manner of an action to try title, as prescribed by our laws, against an administrator, who claims the land sought to be recovered as a part of the real assets of the estate of his intestate. We have sought in vain for a precedent in our own reported decisions, and we feel well assured that it would be difficult to find one in the decisions of any other state for a proceeding just like the present. There can be no doubt that an administrator, or an executor, may (and he is bound to do so by the law) bring suit for lands, really the property of the estate, which are in the adverse possession of others. This is because it is positivi juris, so enjoined by legislative enactment, and, under our system, is indispensable for the fall discharge of the administration. But it may be well questioned whether this action to try title, which has been likened by this court to the possessory action of ejectment at common law, can be brought against an administrator or an executor as a mere fiduciary.
The statute, called the statute of “ trespass to try title,” certainly does not contemplate such an action against a
Prom this view of the law, it is obvious, under the common-law system of pleading, the plaintiff below, by -the general demurrer pleaded by the defendant, would have been turned out of court, and would have been compelled
And as a re-examination of the cause of action has to take place in that court, it becomes necessary that we should review the charge of the court given, as well as the instruction asked by the plaintiff and refused, to guard against errors of law upon another trial. We cannot admit the principle of law announced by the court in the charge to
The legal title passes by the simple signing and delivery of the deed as the law now stands. But for the protection of subsequent purchasers and creditors the policy of the country has required the registration of deeds, not for the purpose of giving greater validity to the legal title, but to
Thus far it is a matter of confidence in creditor and purchaser. Their rights seem equipoised. In the scale of justice they are in equilibrio. • Equity ought not to interpose, but leave them where the law places them. The policy of the law favors the security of titles as conducive to the public good, so says Judge Story; and that policy “would be subverted if a creditor having no lien upon the property” should yet be permitted to avail himself of the mere equal trust which he reposed in the vendor, in giving him the credit, to defeat such a bona fide purchaser. From overweening confidence, it may be, in the debtor, the creditor has extended him credit, liabilities have thus been incurred, and all is done in good faith between the parties, and an obligation is thus contracted by the debtor to fulfill his contract with his creditor. By the same overweening confidence of the purchaser in his vendor, having acquired title to his land by deed, and believing confidently by no act of his vendor will his property be imperilled, or it may be from accident, or sheer mistake, or by some physical impossibility to do so before the credit is given, he has failed to register his conveyance: can it be insisted, upon any principle of morals, by any inflexible rule of law, that such circumstances will operate as constructive fraud, to be set up and relied upon by such subsequent creditor? Ho; the true rule of law must be in such a case that the legal inference and presumption of fraud in favor of'creditors, as con
The view which we have here taken of our statutes upon conveyances and registration is sustained by the case of Ayres v. Duprey, (27 Tex., 607,) in which the learned judge says: “The creditor cannot object to the sale of the property by the debtor before his lien has attached to it. Such sale, if the title is registered, is conclusive upon the creditor. Why shall he complain, if the same effect is given to notice to him of the preceding sale before he has secured a lien upon the property?” This comment, in our view, is sound and just, as well as the comments in the whole concluding paragraph of that opinion, and we cheerfully adopt them as_ a correct exposition of principle and a safe authority on which to rely in the determination of such questions.
In regard to the instruction asked and refused by the court, the proposition contained in it, that the deed from the intestate to the plaintiff passed the legal title to the
As the plaintiff shows he was entitled to relief, the judgment is reversed and the case'remanded, with instructions to give leave to the plaintiff to amend, his petition and make parties of the heirs at law of the intestate.
Beversed and remanded.
Dissenting Opinion
dissenting. — As the case is stated in the opinion of the majority of the court it is unnecessary for me to do anything more than to show iñ what I dissent. I look upon the whole case as depending upon the definition of the word “ creditor.” "The statute, divested of all the verbiage not bearing upon the question before the court, being article 4988, Paschal’s Digest, provides: “All bargains, sales, and other conveyances whatever, of any lands, tenements, and hereditaments, whether they may be made for passing any estate of freehold or inheritance, or for a term of years, and deeds of settlement upon marriage, whether land, slaves, money, or other personal thing, shall be settled or covenanted to be left or paid at the death of the party or otherwise, and all deeds of trust and mortgages whatsoever, which shall hereafter be made and executed, shall be void as to all creditors and subsequent purchasers for valuable consideration without notice, unless they shall be acknowledged or proved and lodged with the clerk, to be recorded according to the directions of this act; but the same, as between the parties and their heirs, and as to all subsequent purchasers, with notice thereof, or without valuable consideration, shall nevertheless be valid and binding.”
The term “ creditors” has a common and a legal meaning. In the common idea, a creditor is one to whom a sum of money or anything is due. But inasmuch as a creditor cannot have his debts collected till they have been adjudicated by a proper and legal court, it is probable that the statute contemplated such creditors only as had their debts merged in judgments of courts or became judgment creditors. There can be no doubt that a judgment creditor is one of the highest character. Without deciding that the creditor mentioned in the statute is the judgment creditor only, inasmuch as a judgment creditor is a creditor in every possible sense of the word, it is evident that the statute must include such in the term creditor.
But are persons whose claims have been allowed by the administrator and approved by the chief justice such judgment creditors ?
Our statutes provide two methods for a creditor to establish his claim judicially against an estate of a deceased party. The first, by the presentation of the claim to the administrator of an estate, accompanied with an affidavit in writing that the claim is just, and that all legal offsets, payments, and credits, known to affiant, have been allowed, and having or receiving the certificate of the administrator indorsed upon or annexed to the claim, stating the time of the presentation and the allowance thereof,
The second method is a judgment in the district court. (Paschal’s Dig., Arts. 1309, 1311.) But the statute expressly provides that the judgment thus obtained shall have the same force and effect as if the amount thereof had been allowed by the executor or administrator and approved by the chief justice. (Art. 1311.) It would seem, therefore, that the statute places a claim acknowledged by an administrator and approved by a chief justice upon a par with one established in any court of the state.
It may be said that a judgment in the district court creates a lien upon all the real estate of the debtor situated in the county.
The lien established for the payment of a claim against an estate is not confined to the real estate situated in the county in which the claim is established, but extends to all the property of the estate of the deceased wherever situated.
The legislature has declared what shall be the requisitions of a title, and has required that titles to real estate, to be valid in all respects, shall be recorded. By the ancient laws, both of England and Spain, possession, actual possession, was given to the purchaser of real as well as personal property by calling upon the citizens of the vicinage to witness the transaction; that the purchaser did enter upon the land and do and perform such things as an owner only was permitted to do and perform. This delivery and actual possession has been substituted by requiring the purchaser to place his title upon the records accessible to all, each and every person, and is imperative. Jt is designed that every one who has an interest in the property or pecuniary affairs of another should have notice thereof, and therefore provides that recording a deed is not necessary, so far as relates to all creditors and subsequent purchasers with notice.'
The controversy in this case is between the judgment
The charge of the judge had no reference to creditors in general, and could have none, because none such were before the court. The charge is strictly statutory; or, if there was any error, it was in favor of the party complaining; “if the jury find from the evidence that the deed under which the plaintiff claims the land in controversy was not recorded in the counties where the lands he until after the debts were contracted by the intestate which have been proved in this case, that in that case the deed of conveyance from Robert T. Barrett to Richard Barrett conveys no title as against such creditors, and there should be a verdict for the administrator of the intestate, to the end that he may pay such debts out of the land, unless such creditors had notice of the same.”
This charge left to the jury the facts in the case, and gave as law what the act required. I have thus far proceeded as if judgment creditors only were to be regarded as creditors, because the case before the court did not require an opinion as to others.
But article 4983, Paschal’s Digest, would seem to be more extensive, viz: “Mo deed, conveyance, lien, or other instrument of writing shall take effect, as regards the interests and rights of third parties, until the same shall have been duly proved and presented to the court as required by this act for recording land titles.”
The controversy is not between the vendee or supposed purchaser of the land and the vendor or his heirs or voluntary grantees, but between one who represents himself as a purchaser, in the State of Missouri, on the 12th October, 1859, and who resides in the city and State of New York, and who never exhibited the deed until the 5th day of October, 1867, at 9 o’clock a. m. During all this time the maker of the deed, "and ostensibly the owner of
It is difficult to conceive of a ease more appropriate than this, showing the wisdom and justice of the legislature in passing the act.
I deem it my duty also not to pass over these purported deeds in silence. The first is dated 17th August, 1859, and recites a consideration of $20,000, and conveys all the property, real and personal, owned by the grantor in the State of Texas, without any definite description of its locality or quantity.
The second deed is dated 12th October, 1859, recites as a consideration $5,000, and conveys all the grantor’s lands in the State of Texas, specifies the counties and town in which some of the lands lie, and gives the names of his grantor to two of the tracts, one of which contains from four to six thousand acres.
The two deeds, or purported deeds, are not essentially different, except in date and consideration. Upon the reading of these instruments the supposition would be that there were three tracts of land, but the petition sets forth at least twelve different tracts, besides numerous town lots. Ueither of the instruments has been legally recorded, and it is evident that there was no consideration for them; that the seller did not know what he was selling or the purchaser what he was buying, and that legally nothing was sold or bought; that the most that can be said of the duplicate instruments is that they are donatio mortis causa, or a will, and must be treated as such.
My opinion is that there is no error in the j udgment of the district court, but, as I am alone in this opinion, the judgment is reversed.