71 F. 618 | 5th Cir. | 1896
(after stating the facts as above). The question on this appeal is whether the complainants below (appellants here) show in their bill an equitable title to the lands in controversy which is not available to them as a defense to the action of trespass to. .try title pending on the law side of the court. The answer to this- question depends upon whether the complainant Massenburg was the owner of the two-thirds interest in the land certificate upon which the patent to the heirs of Denison was issued by the state of Texas; for it cannot be disputed that, if Massenburg owned the two-thirds interest in the certificate, he became the equitable owner of the land located thereunder when the patent issued (see Abernathy v. Stone, 81 Tex. 430-434, 16 S. W. 1102, and cases cited); and, as the transfers of the two-thirds interest in the certificate from Henry Smith to Massenburg are undisputed, the question may be further narrowed to this: What title to the two-thirds interest in the certificate did Henry Smith obtain by the sale, transfer, and assignment to him by Richard Hopkins, administrator of the estate of Lewis C. Denison?
The bill alleges, and the demurrers admit: That in 1838 Richard M. Hopkins was the duly appointed, qualified, and acting administrator of the estate of Lewis C. Denison, deceased, having been so appointed by the county court of Red River county, Tex. That the said estate was small, and in debt, and the property belonging to it did not amount to $500 in value. That the said Richard M. Hopkins, administrator, had obtained from the board of public land ■commissioners, and held as administrator, as aforesaid, a certificate for a league and labor of land, based upon the condition and services of Lewis Denison in his lifetime, which was entitled to be located on the public domain of Texas; that on February 7, 1839, the said Hopkins, administrator, sold and transferred two-thirds of said certificate to Henry Smith. That the following assignment was indorsed thereon:
“Republic of Texas, Red River County.
“Know all men by these presents, that 1, Richard M. Hopkins, administrator, by virtue of a decree of the honorable probate court for the county of Red River, do hereby assign and set over unto Henry Smith two-thirds of the land called for by the within certificate.
“Witness .my hand and seal, this, the 7th day of February, 1889.
“[Seal.] R. M. Hopkins, Administrator.”
That on November 27, 1858, said Hopkins duly acknowledged the execution of said indorsement before the clerk of the county court of Red River county, Tex., and that said certificate, with indorsement thereon, and with proof of acknowledgment of the same, was duly filed for record, and recorded in the office of the .county clerk of Red River county in the Record of Deeds of February 14, 1859. The averments on this subject conclude with the following:
“Your orators believe and aver that said sale of said certificate was made under the orders of said county court of Red River county.”
The bill further shows that the possession of the land certificate passed to Henry Smith, and through him to complainant Massenburg, who caused the same to be located on the lands in controversy,
These admitted facts are consistent only with a valid sale and transfer of a two-thirds interest in the land certificate in question to Henry Smith, as claimed in the bill; and, when considered in connection with the time elapsed, and the fact that, under the laws in force at the time, small estates, under $500 in value, like that of Lewis C. Denison, were administered in a summary manner, it appears to this court that the bill shows a prima facie case, at least, in favor of the validity of the transfer in question. In connection with these averments of transfer, made many years ago, under alleged orders of court, Baker v. Coe, 20 Tex. 436, Gibson v. Foster, 2 La. Ann. 503, and Moore v. Green, 19 How. 69, are instructive. In the latter case, which involved a sale by an administrator, in which no order of sale or the confirmation of sale was alleged, and for that reason the sale was claimed to be void, the court says:
•‘The complainants’ counsel seem to suppose that, as the defendants, in Their answer, admit the property, at least in part, was originally acquired under sale of Hanlon’s administrator, they are bound to show the proceedings were not only conformable to law, but they must go further, and prove the debts for which it was sold were due and owing by the deceased. So far from this being the legal rule, under the circumstances of this case, the presumptions are in favor of the present occupants, and the complainants must show that the administrator’s sale was illegal and void. After an adverse possession of more than 80 years, when the facts have passed from the memory, and, as in this case, the papers are not to be found in the probate court, no court can require of the defendants proof in regard to said sale.”
The view we take of this branch of the case disposes of the first, fourth, and eighth assignments of error, and, we think, renders unnecessary any decision upon the other assignments. We, however, take occasion to say that the amounts expended by Massenburg in procuring the location and survey of the land, and in procuring a patent therefor, and'in paying the taxes thereon, are proper matters in determining how far he and his co-complainants have been in good faith in the transaction in question; that where a party is in possession of land he may wait until his title and possession are attacked before setting up equitable demands, and this without being chargeable with laches; and that, where a party is possessed of a full equitable title to lands, he may resort to a court of equity to protect himself, although, perhaps, he might defend in an action at law by asserting title by prescription.
The decree of the circuit court is reversed, and the cause remanded, with instructions to overrule the demurrers to complainants’ bill, and thereafter proceed as equity requires.
