69 Tex. 325 | Tex. | 1887
It is contended by the appellees that Mrs. Hill, after the death of Jesse Bussell, her former husband, leaving her and the four minor children surviving him, had the power to make the contract for the location of the certificate. The charge of the court submits that view of the case as the law, and the jury are told that, if the contract was advantageous to the estate of the minors, was reasonable and fair, that it was valid and would bind their interests in the land. When Jesse Bussell died, his estate, being community between himself and wife, vested immediately in his heirs, subject to community debts and administration; the community half of Mrs. Russell passed to her, with absolute right of control and disposition. (Pas. Dig., art. 4642; 24 Texas, 582; 28 Texas, 34; Johnson v. Harrison, 48 Texas, 257; 20 Texas, 294; Veramendi v. Hutchins, 48 Texas, 531.)
Before the contract was made she had administered upon the estate of her deceased husband, and had been discharged, after filing and having her final account approved. The estate was very small and the family were poor, and the estate was soon wound up and her discharge granted. She had intermarried with H. H. Hill. At least, up to the time she married Hill, she had the power, as survivor of the community estate, to pay debts with which it was charged and to relieve it of any prior obligations and incumbrances; but she at no time had the power to sell the community, orto make-future contracts with reference to it that could be binding upon any one but herself. The statute itself of 1840 provided that, upon the dissolution of the marriage by death, one-half of the community passed to the survivor and the other half to the child or children of the deceased (Pas. Dig., art. 4642), and the same rule has been often
Appellees say there was an administration then existing upon the Russell estate; that after her formal discharge, the administratrix obtained other orders from the court and was recognized as the administratrix by the court, and that the order of discharge would be presumed to have been set aside; and they cite Bayne v. Garrett, 17 Texas, 330, in support of the doctrine; and they also insist that Mrs. Hill represented herself to be the administratrix and the guardian of the minors. Suppose there had been administration existing in fact, she could not have made a valid contract to bind the interests of the minors in the certificate and the land to be located by it without an order of the court. She was not their guardian at all. Her assertions, that she was such guardian could affect no rights but her own, and there is scarcely a probability that Williams was deceived by such assertions. It was his duty to see to it that the minors’ interests were bound in some legal way. He was contracting with reference to the rights of these minors, presuming to bind them, and was satisfied with an illegal contract. He now, through his vendees, asks the courts to make the contract good, because he performed it on his part, and because the minors were benefited by it and accepted the fruits of it. Such a position can not be upheld. (Sypert v. McCowen, 28 Texas, 636, and Ross v. Mitchell, 28 Texas, 150.) The minors were guilty of no, fraud towards him; they made no contract with him and made, no representations to him. He made the contract with one not) authorized to make it, except for herself, and located the land, completing his contract with the widow (valid as to her interests)' after he had purchased her half of the certificate, and derived such benefit from the location as the contract for Mrs. Hill’s interest and his own purchase entitled him to, and in all probability all he ever expected; at all events, it was all the law could have respected.
At the time he purchased her half the original contract was canceled, and she and her husband executed to him a bond for
It is claimed, however, that Mrs. Hill and her husband divided the land with Williams, giving him one particular half under his purchase from Mrs. Hill, and one thousand acres out of the other half falling to the heirs, leaving the rest, one thousand three hundred and two acres (or one thousand four hundred and seventy -six acres), for the children, and the children, after coming of age, ratified the contract and the partition by selling off the one thousand three hundred and two acres. The charge of the court makes this ratification depend, as it should have done, upon the right of Mrs. Hill, in the first place, to make the original contract of location for the heirs. The recognition by the heirs would be sufficient and binding as an acceptance and approval of the partition into two halves, and would bind them to the half set apart to them; but if Williams had no right to. any part of such half, their adoption of the partition would only extend to the division into. the two halves. The part of the charge complained of would have been correct if the other part upon which it depended had been the law, but that being incorrect renders the concluding part error, for which the judg .
The judgment should be reversed and the cause remanded for a new trial.
Reversed and remanded.
Opinion adopted December 13, 1887.