136 S.W. 538 | Tex. App. | 1911
Under proper assignments of error, the appellants challenge the conclusion of law made by the court that Julia A. Sigler had full authority as administratrix to make the sale and conveyance of April 23, 1872, to J. K. Williams, and that her sale passed title to the land in suit, because the certificate was personalty. A clearer understanding of the points involved in the appeal is had by a brief statement. Appellants, who were really defendants in the suit, claim title to the land in issue as heirs of W. N. and Julia A. Sigler. The appellees, who were plaintiffs below, claim title under a chain of transfers from J. K. Williams. J. K. Williams' claim for title is deraigned through the conveyance of April 23, 1872, made by Julia A. Sigler as administratrix of the estate of W. N. Sigler, deceased. The sole controversy is one of law as to whether in the record the power and authority existed in the administratrix as such to make the sale and deed to J. K. Williams. If such power is shown to have existed, then the judgment awarding appellees all the land in suit is admittedly correct. The deed referred to by its terms conveyed "one league and labor land certificate issued to M. Carpenter for one league and labor of land" and "all and singular the lands located by virtue of the same." At the time of this sale and deed, it appears that the certificate was located upon two surveys in San Augustine county. It is not shown in the record that any order of the probate court was made or had authorizing the administratrix to make the sale and deed, and there is sufficient evidence to show that the sale and deed were made without any order of the probate court authorizing the same. The contention of the appellants, in effect, is that it was incumbent on the appellees, claiming to deraign title through the deed of an administratrix, in order to show a valid sale and deed, to make proof that the administratrix had authority of the probate court to make the sale and deed. The appellees contend that the deed only transferred the certificate, and under the facts the certificate at the time was a chattel, and that under the probate laws of 1870 (Acts 12th Leg. c. 81, §§ 161-167), in force at the time of the sale, an administratrix had authority to sell personalty of the estate without an order of the probate court. In the former appeal of this case (
This brings us to the determination of whether the court's conclusion of law, challenged by appellants, was correct, that the certificate under the facts was personalty. The court finds as a fact that the certificate was located in December, 1840, upon two surveys of land subject to appropriation in San Augustine county, and sufficient to appropriate all of the certificate. The field notes and plats of the two surveys were duly returned to and recognized by and filed in the General Land Office, and were duly entered in the records of the surveyor of San *540
Augustine county, and legally made. The location, field notes, and surveys were recognized by the Land Office and the parties until August 2, 1872. The original certificate was never returned to the Land Office and filed with the field notes. On August 2, 1872, the Land Commissioner, acting under the act of 1871, declared the two surveys made under the certificate forfeited for the reason that the certificate had not been returned to the Land Office. On July 30, 1872, the Land Commissioner issued a duplicate certificate reciting that it was issued "in lieu of the original lost." After the forfeiture of the two surveys, this certificate was floated and located upon the land in suit. Upon these facts the court concluded as a matter of law "that the location and surveys and return of the field notes to the General Land Office on the two surveys made in December, 1840, did not merge the certificate in realty, because the certificate was not returned to the General Land Office with the field notes, and therefore the certificate still remained personal property." From the facts it appears as a fact that the location and surveys and field notes made remained and were recognized by the Land Office and the parties from 1840 to August 2, 1872. And by this it is understood that the court did not base his conclusion of law that the certificate was personalty upon any presumption or inference that there had been an abandonment in fact at any time by the parties of the location and surveys because of the failure to return the certificate. The parties to the suit stand on and rely on the forfeiture of the two former surveys by the Land Commissioner, and the subsequent of the certificate, as authorizing the location and patent of the Panola county land in suit. Therefore, as between the parties, and as between the parties and the state, it is to be taken as a fact that the original location and survey in San Augustine county had not been abandoned at the time of the sale, and not until August 2, 1872, when the Land Commissioner, acting under the act of 1871, forfeited the surveys. And by reference to the deed in suit it clearly appears by its terms that the parties were dealing with respect to rights existing under the location and survey then had, and that it was their intention to pass and acquire all such rights. The deed by its terms undertakes to convey not only the certificate, but "all and singular the lands located by virtue of the same." In Curdy v. Stafford,
Undoubtedly the administratrix as such could not have abandoned and forfeited any right of the estate in the location and surveys without express authority of the probate court to do so. The effect of the court's conclusion, as challenged, is that the failure to return the certificate to the Land Office operated to render the location void and of no effect ab initio, and, in consequence of being a void location, the certificate remained in the legal status of never having been located, and therefore a chattel personal. For the actual location and surveys here to *541
be held void ab initio it would depend upon whether the laws in force prior to the act of 1871 made it so for failure to return the certificate to the Land Office with the field notes. It was pointedly held in Snider v. Methvin,
Mrs. Julia A. Sigler was not only administratrix, but joint owner as well. And although she, acting in her fiduciary capacity, exceeded legal authority in making the conveyance, her conveyance would nevertheless invest her grantee with such interest as she owned in her individual right. Corzine v. Williams,
The judgment of the district court is therefore modified so that appellants recover a one-half undivided interest in the lands described in the judgment, and appellees recover a one-half undivided interest in the same, the appellees to pay costs of this appeal, and appellants all costs of the district court. The judgment against appellant Pate is modified to allow a recovery in favor of appellees for $130 and interest. The judgment in favor of Hutto, not being appealed from, will remain undisturbed.
Modified and affirmed.