51 Tex. 23 | Tex. | 1879
At the January Term, 1866, the County Court of Fort Bend county, in the regular administration of the estate of William Saunders, deceased, ordered, under article 1313 of Paschal’s Digest, W. L. McNeal and Sarah E. Saunders, the surviving wife of William Saunders, as the administrators of his estate, to make title to B. G. Marshall to four hundred and five and one-half acres of land. This order was made in compliance with a written agreement of sale, made to Marshall by Saunders, jointly with T. Mather, who owned the land in partnership.
In November, 1859, previous to the marriage of Saunders, he and Mather mortgaged this land, with a large amount of other ¡iropierty, to Marshall, to secure a just debt which he held against them. Saunders, after his marriage, with the consent of Mather, lived upon the land as his homestead. In August, 1865, and while thus living upon the land, Saunders and Mather, in payment of their indebtedness to Marshall, and in satisfaction of their mortgage, made the agreement of sale upon which the County Court based the above order. The deed was made in compliance with the order, the property delivered to Marshall, and the notes of Saunders and Mather, amounting to about $50,000, delivered up to them. Marshall, since that time, has died, and appellee Howard has been appointed his administrator. The land was inventoried as property of the estate of Marshall, and two hundred and five and one-half acres of the same has since been sold. At the same term at which the order for title to Marshall was made, the court granted to Mrs. Saunders, for herself and minor children, the sum of $2,400, in lieu of a homestead and other exempt property. The present proceeding was instituted in March, 1873, by Mrs. Saunders,
We are met on the threshold of the case with a question the determination of which, in the view we take of it, makes it improper that we give further consideration to the important points which otherwise would arise in the record. The proceeding is by motion simply, made on the probate side of •the District Court as then constituted, to vacate a previous order of the County Court in the proper exercise of such jurisdiction, before the same was transferred from the County to the District Court. In its legal effect, it is an application to a court of limited jurisdiction to vacate its own order, made years before within its appropriate jurisdiction. Neither Mather" nor the party to whom the remainder of the land had been sold—the interest of both of whom might be seriously affected by the proceedings—were made parties; nor did the District Court, as a court of probate, have authority to make them parties, or to exercise the jurisdiction to grant the relief sought. This could be done only by proceeding, in the nature of a bill in equity in the District Court, in the exercise of its general jurisdiction. Even had the suit been properly brought, the. plaintiffs were not entitled to judgment until all necessary parties had been made, so that their respective equities could have been considered and adjudged, if indeed their situations had not so materially changed as to preclude an equitable adjustment. No account or tender of repayment of the money received in lieu of a homestead is made, and no offer on the part of plaintiffs to do that equity which they themselves invoke. We are not advised by the record upon what ground the court overruled the motion ; but whatever may have been the reason, the plaintiffs, under the case as made, were not entitled to the relief prayed for, and the judgment below is affirmed.
Affirmed.