19 S.W. 799 | Tex. | 1892
This suit is one of trespass to try title to 640 acres of land, described in the petition. It was brought by appellant M.A. Jackson on June 6, 1887, who claimed as the only heir and grandchild of Wright N. Kirk, who died intestate, in Fort Bend County, in 1842. It was alleged, that one John Patton administered on his estate in that county in 1849; that he obtained an order to sell the land to pay the debts of the estate; that he reported the sale of said land at the March term, 1849, which was confirmed by the court; that he subsequently, on April 5, 1849, executed a deed to one J.V. Massey, the purchaser, for $96, who on same day reconveyed by quitclaim deed the land to Patton for the same consideration. It is also alleged, that the administrator did not make the application for the sale of the land in compliance with law; that there was no statement of expenses of administration or claims; that there were no debts due by said estate, and no necessity for the sale; that it was to be made on a credit of twelve months, with personal security, whereas said sale was made without such security and without consideration. It was further charged, that the sale was fraudulently made by the administrator, with the intention that he should become the purchaser; and that the defendants had constructive notice of the fact, and that said sale was fraudulently made.
Several special exceptions and pleas in bar were embraced in the answer, but it is not necessary to the disposition of the case that they should be considered.
The question before us arises upon the ruling of the court below in sustaining the third special exception, which is as follows:
"3. From the said averments on the face of said petition, it appears that the said administration sale to Massey was made thirty-nine years before the filing of this suit, and before the filing of said petition, and in said petition no cause for the long delay in bringing this action to set aside said sale is shown, and these defendants here interpose by special exception the statute of limitation of ten years of this State, and also that the demand to have said deed cancelled after so long a time is stale and is a stale demand, and these defenses they urge in bar," etc.
In reply, plaintiff alleged that for ten years prior to the filing of the suit she had been a married woman; that she married in October, 1877; that at the time of the administration on the estate of Wright Kirk, Fredonia Kirk was his heir, and a minor, and so continued until *625 1861, when she married, and in 1866 she died; that plaintiff inherited her title from said Fredonia Kirk, who was her mother; that plaintiff was born in 1862, and that her minority and coverture has prevented the application of the doctrine of stale demand, etc.
The ruling of the court sustaining the above exception is assigned as error.
Although it is evident from the allegations in the petition that the sale of the land was made by order of a court having the jurisdiction and power to make such order, it is claimed, that because there was no statement of the expenses of administration, and no debts against the estate, and the sale was not made on a credit of twelve months, with personal security, etc., and the administrator was indirectly the purchaser at his own sale, therefore it was void.
The fact that the administrator failed to accompany the application for the sale with a statement of the expenses and claims does not render the sale void. The statutory requirements which it is alleged in the petition were not complied with in making the sale have been held to be directory (Kleinecke v. Woodward,
The question of the effect of fraud in avoiding an administration sale of property at the suit of an heir was discussed in Murchison v. White,
The present suit differs in no important respect from that referred to in the case cited. The appellant claims, that as the patent issued to the heirs of Wright Kirk after his death, but before administration on his estate, the legal title was in plaintiff, and the doctrine of laches has no application. It is evident from the petition that plaintiff's title is derived by inheritance from Wright Kirk, whose property was subject to administration; and whether it was a legal or equitable title, that title passed by the sale, if it was a valid sale. And the question now before *626 us is, whether this suit was brought to set aside that sale within a proper time.
The sale was made in 1849 by the administrator of the estate of Wright Kirk. At the March term, 1849, of the Probate Court the sale was confirmed, and on the 6th day of April, 1849, John Patton, the administrator, executed the deed to J.N. Massey, the purchaser. The plaintiff's mother, Fredonia Kirk, through whom she derives her title, was the only child and heir of Wright Kirk, and was at the time a minor, and so remained until her marriage, in 1861. Plaintiff was born in 1862, and her mother died in 1866. Plaintiff married in June, 1877. This suit was filed in October, 1887. There was no period of time from 1849 to 1866, the date of the death of plaintiff's mother, during which the statute of limitation ran against her, because her disability of minority which existed when the cause of action accrued existed from the sale of the land until the statute was suspended. And the time after the statute was suspended should not be computed against her until the suspension ceased, in March, 1870. This being so, it is contended by appellant that when the statute was put in motion, in March, 1870, it did not run against the plaintiff, because she was then a minor; and this minority continued until her marriage, in October, 1877, and that consequently her minority and coverture interrupted the statute as to her.
In this view, we do not concur. The appellant M.A. Jackson occupies the same position, in so far as the question of limitation is involved in this case, that her mother Fredonia Kirk, through whom she claims, would have occupied had she lived. Now, if the statute of limitation would not have run against Mrs. Kirk on March 30, 1870, it would have only been so by reason of her coverture, for her minority had ceased in 1861, when she married. Her coverture could not have been invoked if she had lived, because it would have been the connection of her disability of minority with that of her marriage, which could not have been allowed.
That exceptions in the statute can not be accumulated is a well settled and familiar rule. At the time the right of action accrued in this case, in 1849, Mrs. Fredonia Kirk was laboring under the disability of minority. That disability (or exception to the operation of the statute) was, as we have seen, removed by her marriage in 1861. Under well settled and numerous authorities, no subsequent disability or exception can be added. This question was fully considered in White v. Latimer,
Affirmed.
Adopted May 17, 1892.