15 Tex. 471 | Tex. | 1855
This was a suit by the heirs of Jesse Bartlett, decased, to recover from James H. Cocke a tract of Land originally belonging to the estate of the deceased, and claimed by defendants through mesne conveyances from an administrator’s sale. The main question in the cause is whether Oliver Jones, who acted as administrator at the sale
On the 10th July, the administrators exhibited their account showing a large amount of debts against the estate unpaid, and praying for a more perfect inventory. The account was received and an inventory ordered, at the July Term, it is presumed, there being no date. Subsequently to this Joseph Bartlett resigned and was discharged, and Oliver Jones was to render his bond as administrator, in a sum far beyond twice the value of the estate. The date of the resignation of Bartlett, and the extension of time to Jones, or in fact his reappointment, is not stated. The presumption is that these acts were done at the August term, the bond of Jones, in compliance with the order, being dated on the 13th of Sept., 1839. On the 30th September, Jones, under his new appointment, took his oath of office. On the 31st December, 1839, the administrator by petition represented the necessity of selling the personal and a portion of the real property to pay the debts of the estate, and prayed a decree to that effect, which was granted and a sale ordered. No action was had under this order, and a petition for sale was again filed on the 22nd of October, 1840, referring in this petition to the home place, a.
In comformity with this order, the property in question, together with other portions of the estate, was sold on the first and second days of December, 1840,—And Nathan A. NcFadclin is set down as the purchaser.
In April, 1843, the administrator, at the petition of one of the heirs, joined by her husband, was cited to render his account, and this was exhibited and the administrator finally discharged in 1845, if the date of the proceeding be not misconceived.
It appeared from the evidence, that the deed from the administrators to McFaddin, the purchaser, bore date in September eighteen hundred and forty-four. In this connection it may bo stated that McFaddin sold to Sleight, and Sleight to the defendant, James H. Cocke.
It appears from this recital, that the administration of Bartlett's estate was conducted with a due degree of regularity, and that notwithstanding the great lapse of time and the probable loss of some of the papers, yet there is scarcely a link wanting in the consecutive order of procedure, down to the sale, showing at least a substantial compliance with the requirements of the law. Before the expiration of the first year, there was an extension which would continue until the August term, in 1839. There was then in substance a new appointment. A new bond and oath were taken.
Had the administration been merely prolonged, the bond should have been for not more than one fourth beyond the estimated value of the estate, (Civ. Code, Art. 1199,) whereas, it was for much more than double the value of the property. The oath under this appointment, having been taken at the September Term, 1839, the administration would in fact commence at that date and continue until September Term, 1840.
1st. That Jones was not administrator at the order of sale, nor at the execution of the deed.
2nd. That it is void for uncertainty.
The objection that he was not administrator at the order of sale has been disposed of, and it has been shown by the incontestible evidence of the record, that he was legally and regularly administrator, at the order of sale and at the time of sale. The question is now made as to his administratorship, at the execution of the conveyance.
It is not essential to the title of the defendants, that the deed from Jones, as administrator, to McFaddin, should have been introduced. The fact of sale in accordance with the order, and the payment of the purchase money are in proof, and would be sufficient for the defence, although no deed may have been made by the administrator and none offered in evidence. (Miller v. Alexander, 8 Tex. R. 32.) And if necessary for the rights of the purchaser, it would seem that an administrator, although his office may have expired, might execute a formal conveyance for lands sold and the purchase money paid during his administration. But records of the Probate Court show that the administration was not in fact closed on the expiration of the eight months extension in October, 1840. On the 25th March, 1843, Nancy Crawford, one of the heirs, joined by her husband, (and who are plaintiffs in this suit,) filed their petition, stating that the succession had been opened much more than one year, that no final settlement had been had thereon, praying for citation that Jones might appear and make such final settlement, and in 1845 the administrator, after due notice given as prescribed by law, appeared and having given a full account of his administration, was finally and forever discharged.
Nor is there more force in the objection that the deed was void for uncertainty. The blanks were in the recitals of the deed. They form no essential part of the conveyance, however convenient they may be for purposes of reference ; and had they been left out altogether, the validity of the deed would not have been impaired.
The claim of the plaintiffs appears to have no merit, moral, legal or equitable. That the sale was necessary is the conclusive presumption from the record and the order of sale.
In closing this Opinion we will only observe that several of the heirs are barred by the statute of limitations. Five years possession under the deed would bar all those not laboring under disability. Whether the statute did not commence to run against the administrator, from the sale, and against all the heirs represented by the administrator, is a question not without interest, but is not essential to the decision. Whether the married women among the heirs, and who-have been under coverture from the opening of the succession, are not barred, is a question which, under other circumstances might require attention. Two of them, with their husbands, petitioned for division, and they all acquiesced in the partition, excluding the land in controversy and bounding their lots up
Judgment affirmed.