19 Tex. 354 | Tex. | 1857
The law under which administration was granted upon the estate of the intestate, provided that the succession should be opened, “ in the County where the deceased resided, if he had a fixed domicil or residence in the
The petition to the Probate Court, on which administration was granted, does not show that the deceased had his fixed domicil in Lamar, or any other county in the Republic ; but it avers that he had property in Red River county. If it was real estate,—and that was matter of proof before the Court,— and he had not a fixed domicil elsewhere, the Court in that county might rightfully take jurisdiction and grant administration of his estate. If he had a fixed domicil elsewhere, it should have been averred by the plaintiffs in their petition. As it was not averred, and as the plaintiffs did not amend when it was their right to do so, the Court did not err in holding the petition insufficient in so far as it sought-to annul the judgment of the Probate Court for the want of jurisdiction.
It is not denied that the defendants were innocent bona fidepurchasers; nor is there any averment charging them with fraud, or with notice of the alleged fraud of the administrator and first purchaser. And it is well settled that a bona fide purchaser without notice of the fraud of the original grantor will not be affected by it. (Barnes v. Hardeman, 15 Tex. R. 366.)
The alleged want of notice to the plaintiffs, of the order of sale, was not a ground for setting aside the sale made by the administrator. The Act of 1848, under which the order was obtained, does not require or seem to contemplate the service of a citation or notice upon the heirs in such a case. The want of it did not invalidate the sale, on general principles.
We are of opinion that the plaintiffs by their petition did not show any sufficient ground for annulling and setting aside the title of the defendant in this action ; and consequently that the Court did not err in sustaining the demurrer. The judgment is therefore affirmed.
Judgment affirmed.