21 Tex. 594 | Tex. | 1858
An order of the County Court of Rusk county was obtained upon the petition of Duncan, requiring Parmelia Reel, administratrix of the estate of Alfred Reel, deceased, to make title to said Duncan for one hundred acres of land, alleged to have been sold and partly paid for in the life-time of said Alfred. The record of the County Court shows that the order was obtained upon the proof of a bond given to one Daugherty, by said Alfred, for seventy-five acres, which was held by Duncan, and a verbal agreement between said Alfred
The petition prays a certiorari to remove the proceedings from the County. Court to revise and correct said order. An amendment is made stating that Duncan has been and is in possession of the land and has received the rents and profits, &c., and prays for a judgment for the same and for a writ of possession.
The order sought to be revised was made at the August Term," 1849, of the County Court, and the petition in this case to obtain a writ of certiorari was filed in the District Court of said county on 23rd day of November, 1854. There were general and special exceptions to the petition, as well as general and special pleas in bar.
The Court below dismissed the certiorari “for want of jurisdiction,” and rendered a judgment for costs against Norris ; which is assigned as error.
This is a proceeding to revise a judgment of the County Court and not one collaterally attacking it.
The law under which Duncan filed his petition in the County Court, to obtain a title to the tract of one hundred acres of land, contemplates a case only where the decedent had executed a bond for title. (Hart. Dig. Art. 1162.) It did not therefore apply to all the land in this case, for the petition of Duncan, upon which the order is founded, shows that there
This remedy, by certiorari, to revise proceedings -in the County Court is limited to two years, “ saving to persons non compos mentis, infants and femes covert two years after their respective disabilities shall be removed.” ■ (Hart. Dig. Art. 809.) A like reservation is also contained in the article giving the remedy on a bond to obtain a title from the administrator. (Art. 1162.)
From this it would appear that the rights of these minors, as presented by the petition, have not been lost, and that they are not barred from maintaining this suit. The petition states that the estate of Alfred Reel is still under administration.
But according to the facts stated in the petition, this land belonged to and was part of the homestead of said Alfred not legally disposed of, and in that event these minors have rights therein apart from those which they might claim through any ■administrator ; and the law gives to “ any person interested ” this remedy by certiorari to revise the proceedings of the County Court affecting such interest. (Hart. Dig. Art. 807.)
The equitable defence set up by defendant below (Duncan) that he went into possession under the verbal contract, made valuable improvements, and paid most of the purchase money, &c., we will not consider as they have not been presented in argument and was not decided below. We see no objection to the amendment of plaintiff in seeking to recover possession and for rents, if he is entitled to the land upon final decree ; as by that means the whole matters in controversy may be settled in the same suit.
What we now decide is, that the plaintiff, in behalf of the minors, having shown an interest in the land as the homestead
Judgment is reversed and cause remanded for further proceedings.
Reversed and remanded.