23 S.W. 562 | Tex. App. | 1893
This suit was instituted by appellee, as administrator of the estate of Jesse Mumford, deceased, to recover of appellants the title and possession of the 65 acres in controversy, which was located and patented by virtue of a 1280 acres certificate, issued to said Jesse Mumford under the Act of March 15, 1881. Appellants claim under an alleged verbal transfer of this certificate by the grantee in his lifetime to Fowler, Kerr Co. Also, under a written transfer to the same parties, made by Eldora Mumford, surviving wife of the grantee, after his death. Also, under a judgment of the County Court of Milam County in favor of said Fowler, Kerr Co. against the surviving wife and heirs of Jesse Mumford, purporting to establish their title to the certificate by reason of their verbal purchase aforesaid. The suit in which said judgment was rendered was instituted before the location of the certificate and before administration upon Mumford's estate, but the decree was not rendered until after appellee was granted letters of administration, nor until after the location of the land in controversy. This land was located by the appellant Huff, for himself, under the belief that his vendors were the owners of the entire certificate.
We incline to the opinion that the judgment rendered by the County Court of Milam County after the location of this land, although the suit was commenced before such location, was a nullity as to it, and there was therefore no error as to its exclusion by the court below. The language of the Constitution is, that the County Court shall not have jurisdiction of any suit "for the recovery of lands, nor of suits for the enforcement of liens upon land;" and we think that after the location of the certificate, that suit became, in effect a suit for the recovery of land, of which the County Court no longer had jurisdiction. This, of course, does not apply to that part of the certificate unlocated at the time of the rendition of the judgment.
We think the court erred in submitting to the jury any question as to the validity or effect of the transfer from Eldora Mumford to Fowler, Kerr Co. This transfer was in writing, and upon its face would have the effect to convey all her interest in the certificate, and the administrator of her husband would have no right to assert fraud or want of consideration in its procurement. Either she or those in privity with her must do this. Appellants must therefore in this suit be treated as owning her interest in the certificate at the time of its location; and as this *332 interest was much more than the land in controversy, we think it follows that the court erred in charging the jury that the defendants would in no event be entitled to more than one-third of the land by reason of this transfer.
The general rule is, that where the owner of an undivided interest in a land certificate locates no more than his interest for himself, and pays the expense of such location and procuring the patent, this is in effect a partition, and he is entitled to all of the land, and not simply his proportionate share. Farris v. Gilbert,
The court did not err in refusing to admit in evidence the certificate of the county clerk of Bell County, that no claims had been filed against the estate of Jesse Mumford. These officers are authorized to give certified copies of their records (Revised Statutes, article 2252), but we find no statute making their ex parte certificates as to facts not existing admissible in evidence. The keeper of the records should be used as a witness in the usual way to prove that an instrument has not been filed. Edwards v. Barwise,
But in this case, was the burden on appellants to make this proof? In Mitchell v. De Witt,
In Morris v. Halbert,
In Chubb v. Johnson,
Appellee, it seems, was appointed administrator of the estate of Jesse Mumford in March, 1885, and his petition in this case was not filed until December 29, 1890, and if appellants are able to sustain their claim as purchasers from the wife, before appellee can take the land from them he must show that it will be necessary to satisfy prior claims under administration proceedings. In other words, he must recover it for the benefit of creditors of the estate, and not for heirs who could not recover in their own names. The claims of creditors of the estate, if any there be, would be superior to that of a purchaser from an heir, and if the administrator shows that he represents this class he could recover as against appellants' claim under Eldora Mumford; but if appellants located their part of the certificate derived from Eldora Mumford upon the land in controversy so as to entitle them to all of it under the circumstances herein before indicated, their claim would be superior to that of the other heirs of the estate; and if the administrator only represents such heirs in this suit, he should not be allowed to recover against those having a better right.
The other assignments of error need not be considered.
We conclude the judgment of the court below should be reversed and the cause remanded for a new trial.
Reversed and remanded.