75 Tex. 185 | Tex. App. | 1889
This was an action of trespass to try title, brought by appellant against appellee. The facts which gave rise to the litigation are as follows: The land in controversy was the property of J. M. Lindley at the time of his death, which occurred in 1873. He left as his sole heirs his wife, Mrs. Starkie Lindley, and a minor son. It appears that an administrator was appointed and qualified, that the-estate was administered in part, and that the administration became vacant. At all events it is clearly shown by the record in this case that some time in 1877 one Martin was appointed administrator de bonis non of the estate. During this administration, in September, 1877, Mrs. Lindley, in her own behalf and as guardian of her minor son, made application to
The main question in the case is, as to the effect of the order of the court directing a partition of the lands of the estate and that confirming the partition made by the commissioners in pursuance of the former order. Section 94 of the Act of August 9, 1876, provided that “at any time after the first term of the court after the expiration of twelve months from the original grant of letters testamentary or of administration the heirs, devisees, or legatees of the estate, or any of them, may by their complaint in writing, filed in the County Court, cause the executor or administrator and the heirs, devisees, or legatees to be cited to appear at a regular term of the court and show cause why a partition and distribution should not be made among the heirs, devisees, or legatees of the residue, of the estate, if any there be, after retaining in the hands of the executor or administrator a sufficient portion thereof to pay all debts of every kind against the estate that have been allowed and approved or established by suit, or that have been rejected by the executor or administrator, or not approved by the county judge and may yet be established. If it shall appear to the judge after the service of such citation that there is any residue of the estate, he shall order it to be so partitioned and distributed." Laws of loth Leg., 117.
The evident object of this provision was to enable the heirs to take possession of so much of the estate as was not necessary for the purpose of
Many objections are urged to the validity of the orders of partition, but with one exception they are such as go to the regularity of the proceedings rather than to the jurisdiction of the court. It may be doubted whether the partition Was not in strict accordance with the Act of 1876,' since many of the provisions of the Revised Statutes, on which the objections seemed to be based, are not to be found in that act. At all events it was in substantial compliance with the law, and the final order was such as the court clearly had the jurisdiction to make.
It is objected, however, that the orders are void because the judge who made them was disqualified to sit in the case. It is claimed that S. R. Frost was the judge who made the orders, but this does not appear. The application was addressed to him as county judge, but it does not follow that he was county judge when the orders were made. We can not judicially know who the county judge was at that time. Lane v. Doak, 48 Texas, 227. It is further claimed that he was counsel in the suit for the establishment of the Solomon claim against the estate. This conclusion
The court below found that it was not proved that Frost was the judge when the order was made, and we think the finding correct. We do not wish, however, to be understood as holding that even if Judge Frost were attorney in the case of Mrs. Solomon against the estate he was disqualified by reason of that fact to make the orders in question, if indeed he did make them.
When the defendant offered in evidence the orders of the County Court making a partition of the estate, .the plaintiff objected on the ground that it was not shown that they had ever been recorded in Hopkins County. By the literal terms of the statute no decree for the partition of land or judgment in which the title to any land is recovered can be offered in evidence in any case until it has been recorded in the county where the land lies. Rev. Stats., art. 4339. But in Russell v. Farquhar, 55 Texas, 355, it was held in effect that the object of the statute was merely to give notice to purchasers, and that such a judgment or decree could be introduced in evidence in any case except as against a bona fide purchaser without notice. It is true" that in that case the judgment was one between the parties to the suit in which it was admitted; but we apprehend there can be no difference in principle when it is offered in a second suit between the same parties and when the second suit is between other parties. We are of opinion that in this case the appellant can not claim, to be a bona fide purchaser without notice, since he testified that before he bought, the sale was forbidden by an attorney representing Mrs. Bindley or some other person. Besides he could not be an innocent purchaser under a void sale.
It is urged in behalf of appellant that the court erred in admitting the decree of partition in the Probate Court, because the deed from Mrs. Spencer, formerly Mrs. Bindley, to appellee is signed by her as administratrix of the estate of J. M. Bindley, and as his sole heir. It is argued that she had no order to sell as administratrix, and that she was not sole heir. Technically she was not the sole heir, but by the death of her son she was sole owner, and we think the conveyance passed her title, at least by estoppel. But it matters not; if the title remained in her the decree of partition showed that appellant acquired no title, and it did not matter whether the appellee had title or not. The appellant could only recover upon the strength of his own title.
There is no error in the judgment and it is affirmed.
Affirmed.
Delivered November 22, 1889.