16 Tex. 413 | Tex. | 1856
The record presents a history of the actings of the parties in interest, in relation to the subject of the present controversy, extending through a period of twenty years, and various rulings of the Court upon the trial, which, in the view we entertain of the merits of the case, it does not become necessary to examine in detail. The decision of the case, in our opinion, depends upon the application of the well settled rules of law, to a few evident and indisputable facts, disclosed by the record, and does not necessarily involve an inquiry into all the various questions, which were raised upon the trial, and have been examined with unusual research and ability by counsel for the appellant. Interesting as the examination of those questions might be, with the aid of the ample arguments of counsel, as it is not essential to the decision of the case, we shall decline to enter upon it, and shall direct our inquiries to the matters of fact and of law, which we deem necessary to our decision.
It appears by the records of the Probate and District Courts of Montgomery County, that John Shannon, the ancestor of the defendant, (now appellant,) departed this life in 1838, testate, having received a title to the league of land, a part of which is the subject of this suit; that Jacob Shannon and William Burney qualified as his executors under the will, and received letters testamentary thereupon, at the June Term of the Probate Court of Montgomery County, in the same year. Subsequently one of the executors, Burney, departed this life ; and his co-executor, Shannon, continued in the exercise of his trust, as sole surviving executor, by authority of the Probate Court, so recognized by the heirs of the testator, until final settlement was had and he was discharged, by order of the Probate Court, at its May Term, 1853.
There can be no question, that, if this decree was binding upon the heirs, it finally and conclusively determined the rights of the parties to this suit, as respects the matters adjudicated therein; vesting in the plaintiff the title to the undivided half of the league of land, in question, subject only to the election of the legal representative of the estate, or the heirs, in the choice of halves, upon a division or partition.— But the Court refused to admit it in evidence, and it is insisted that it was rightly excluded, for two reasons : 1st. Because the heirs were not made parties by the service of process upon them ; 2nd. Because the functions of the executor had ceased and were determined by operation of law.
To the first objection it must be answered, that it is well settled by the decisions of this Court, that in an action for the specific performance of a contract made by the testator or intestate for the conveyance of land, it is not necessary that the heirs should be made parties in order to bind them. For the
Nor is the remaining objection well founded in fact or in law. It does not appear by the record, that the functions of the exe-. cutor had ceased. On the contrary, it appears that he continued to act as executor, by authority of the Probate Court, and that he was recognized by the heirs as the rightful executor of the estate, until long after the rendition of this decree. Some, if not all of the heirs who were of age, expressly recoge nized his authority in judicial proceedings in the Probate Court; by appointment of the Court, he acted as the guardian and representative of those who were not of age, in proceedings to which all the heirs were parties; his authority to act in the capacity of executor does not appear ever to have been questioned or doubted ; but, on the contrary, it was sanctioned and approved by the action both of the Court and the heirs. The objection rests upon the single circumstance that no order
The case then stands thus : By the judgment of a Court of competent jurisdiction, the plaintiff is entitled to an undivided half of the league, or of the survey ; to be divided into two equal parts, of which the defendant and his co-heirs were to have their choice. They have separated the south from the north half, and appropriated the former to themselves. Can there be a question that, as between them and the plaintiff, the latter is entitled to the remaining north half? We think not.
Under the decisions of this Court in the case of Merle v. Andrews, (4 Tex. R. 200) and Cannon v. Hemphill, (7 Tex. R. 184,) it cannot be doubted, that the decree of the District Court was final, as respects the rights of the parties in the
Without adverting to other evidence in the case, it is by no means clear that the-plaintiff was not entitled to recover upon the judgment of the Probate Court, rendered at its September Term, 1845, and the action which appears to have been taken thereupon : which was in evidence. It appears that suit had been instituted in the Probate Court for partition among the heirs of John Shannon, wherein all the heirs were parties ; those who were of age appearing in person, and those who were minors being represented by their guardian ad litem, appointed by the Court. The plaintiff in this suit intervened, and was also admitted as a party to the decree which was rendered, wherein it is stated, that the contract, between the ancestors of the interveners and the heirs, was produced, “ showing his right, now claimed by the said William S. Taylor to one half of the league of land, now known as the head-right league of said John Shannon, deceasedand after reciting the appearance of the parties, it proceeds to say, “ by agreement the following decree is made, and here now entered.”
But to this it is objected, that some of the heirs were, at the time, minors, and that the parol partition is therefore invalid. It appears, however, that they were represented by their guardian ; and that their portion was set apart to them. But if the partition was not binding as between them and their coheirs, they were parties to the decree of the Probate Court.— That Court had the power to decree the specific performance of contract in cases like the present. (Dig. Art. 1070.) In decreeing a partition, it necessarily passed upon the rights of the parties in the subject matter. As between the plaintiff and the heirs, that decree, so long as it remains in force, it would seem, was binding as well upon the minor, as the adult heirs, as to the matters therein adjudged ; whether the subsequent partition by the heirs be binding or not, as between
The record shows repeated acts of recognition of the plaintiff’s right, by the ancestor of the defendant in his life time, and by his heirs after his death, for a period of sixteen or seventeen years after the legal disability or inhibition, which attached to the original contract, had been removed. The fact, that the contract was made when such disability attached, did not incapacitate the parties from ever afterwards contracting in respect to the same subject matter ; or from renewing their contract after the removal of the inhibition. If the acquiescence in another’s claim of right, or the recognition of his title
That decree, as we have seen, cannot be impeached for the want of jurisdiction of the parties and the subject matter off the suit. There is no pretence that it was fraudulently obtained ; and it is manifest, from the evidence admitted in the case, and, particularly, the proceedings in the Probate Court subsequent to its rendition, and the conduct of the parties thereto, respecting the subject of it, that it could not be successfully impeached upon that ground, even if it were suggested. Nor could evidence have been admitted, under the pleadings and issues, to countervail its legal effect, if it had been admitted in evidence, upon any other ground. If the evidence which was admitted, was not sufficient to warrant the verdict, the refusal of the Court to grant a new trial ought to be supported, on the ground that, had not the plaintiff’s evidence been improperly excluded, it would have well entitled him to the verdict. It was rightly rendered in his favor, upon the case, admitted and produced in evidence to the Court. It would be idle, therefore, to reverse the judgment, merely to correct an erroneous ruling committed against the appellee, in ruling out his evidence, when it is manifest, that, if the error had not been committed, the result must have been the same, and could not be different upon another trial: to say nothing
It is scarcely necessary to say that the fact, that the survey did not contain a league of land, cannot affect the validity of the decree for specific performance. What portion of the survey the parties were respectively entitled to was settled by the decree ; and that question is thereby concluded.
It is objected that the present was not maintainable, as an action of trespass to try title, for the want of an indorsement, to that effect, upon the petition. This objection came too late on a motion in arrest of judgment, even if it were distinctly taken in the motion, which it is not. The objection should have been taken by exception to the petition : but the answer did not bring in question its legal sufficiency. The defendant answered to the merits, denying the title of the plaintiff, and setting up title in himself. The case was tried upon these issues. The plaintiff was well apprised of the object and nature of the suit, as appears by his answers ; and it was too late, after verdict, to raise the objection, that the petition did not apprise him of the nature of the action, because it had not the proper indorsement.
It is evident the plea of the statute of limitations cannot avail the defendant. There is no pretence of any adverse possession, or holding of the land sought to be recovered in this
In the view we have taken of the case, the rulings of the Court in instructions to the jury, and upon the admissibility and effect of evidence, introduced by the plaintiff to establish a confirmation of the contract, or an equitable title, aside from it, become immaterial, and do not require revision. Upon the whole, we are of opinion that there is no sufficient ground' of error assigned for reversing the judgment, and that it be affirmed.
Judgment affirmed.