26 Tex. 353 | Tex. | 1862
It was held in this ease, when it Was before the court on a former appeal, that the appellant should have been permitted to have sustained his answer by proof; and if he should do this, that he would be entitled to the relief asked by Mm, unless appellees should prove that the defects of title of which appellant complains were known to him at the time of his purchase, and it was understood that he should take such title as they could give. (22 Tex. R., 259.) And it has been frequently held by this court, “ as long as the contract for the sale is in fieri,” (as is the case here,) “the vendor, to enforce payment, should show, when the vendee relies upon defect of title, that the latter had purchased at his own risk.” (Cooper v. Singleton, 19 Tex. R., 260; Hunt v. McReynolds, 20 Tex. R., 595; Id., 601; Saul v. Bradford, Id., 261.) Nor will a court of equity in Such case decree a specific performance when the vendee’s title is doubtful. (Rawle Cov. Title, 566.)
There was no effort on the part of the appellees, in the trial in the court below, to prove that appellant was cognizant of the defects he now charges upon their title at the time he purchased the' land, in part consideration of which the note upon which they sue was given. But they insisted, and the court held, that their title Was unobjectionable. And unless this is so, the judgment in their favor must necessarily be reversed. The appellees claim to have acquired title through a purchaser at a sale by the administrator of Kimber B. Lockhart, to whose estate the testimony shows the' land previously belonged.
The facts in relation to the sale of the land by the administrator of Lockhart, and appellees’ purchase of the title of the vendeer
The only additional facts that strengthen this title from the
The act to organize the Probate Courts, of May 11th, 1846, no where in express terms authorizes the court to order a sale of real estate for the purposes of a partition; but there - can he no doubt that the 24th section of said act, (Hart. Dig., art. 1106,) which authorizes the distribution of the property of estates to be made among the heirs, under the direction of the judge, must be construed as conferring this power especially when a distribution could not be otherwise made. But by this section it is expressly provided, as preliminary to the distribution of the estate, that notice shall he given as in section 17, (Hart. Dig., art. 1099,) which regulates the mode of proceeding to obtain an order of sale of land or negroes for the payment of debts. This section positively requires that notice shall he given to the heirs by personal service if residents of the State, and by publication if nonresidents, before an order can be made for the sale of lands or negroes. We must conclude that the same regulations were intended to apply, where, as in this case, the application was for an order of sale for partition. It cannot, with any propriety; be insisted that the land may be sold without notice, and that it is only when you come to make a partition of the proceeds of the sale that the heirs must be notified. The statute prescribes that after notice shall be given the distribution may be made. How,
In the case of Finch v. Edmonson, 9 Tex. R., 504, it was held that a sale of land by an administrator, made in pursuance of an order of the Probate Court under said 17th section of the act of 1846, although duly confirmed by the court, was void, because a petition was not filed as required by said section. Can there be any less doubt that the notice to the heirs is equally as essential to the jurisdiction of the court as the filing the petition, when, as here, they are both, in equally explicit terms made pre-requisites to the action of the court? When the law requires that notice shall be given to the parties in interest before a judgment or decree shall be pronounced in the Probate Court, is it not as essential to its jurisdiction, as to that of any other tribunal in which notice is required to be given to the adverse party ? It has been universally so held. (Cow. & Hill’s Notes, part 2, note 42; 1 Scam. R., 322; 4 Id., 127; 4 Peters, 358; 2 Ohio R., 292.).
Whore the sale, however, had been properly ordered by the court, the title of the vendee is but a mere equity until it has been confirmed by the Probate Court, (Davis v. Stewart, adm’r., 4 Tex. R., 223,) and unless he obtains a confirmation of it within a reasonable time, it surely must be regarded as vesting in him no interest in the land. (Neill v. Cody, Austin Term, 1862, ante.) These defects would seem to be conclusive against the validity of appellees’ title. But aside from them, it is to be remarked that Davis, under whom they claim, had only a bond for title; and it cannot be pretended that the legal title has been divested out of Lockhart’s heirs. And under the most favorable view that can be taken of the matter for appellees, it can only be said that the subsequent acts of the administrator in having the land sold, and the acquiescence of the heirs in the sale, if it were shown that they are so situated that their rights can be affected in this manner, would be sufficient to enable them to get a decree of title. Yet, until this has been procured by them, they cannot insist upon appellant’s accepting a deed from them, as an execution of the contract on their part.
Reversed and remanded.