Wells v. Mills

22 Tex. 302 | Tex. | 1858

Wheeler, Ch. J.

The statute appears to confide to the chief justice a discretion, in exercising the power of confirming sales of the property of estates. He is required “to inquire “into the manner in which such sale was made ; and if satisfied “it was fairly made, and in conformity with law,” he shall have entered an order confirming it. (Hart. Dig. Art. 1176.) Upon this provision, the court observed, in Davis v. Stewart, 4 Tex. Rep. 221, “It will be seen that much discretion is left to the “judge; if he should believe that the sale was not fair, or that “it was not made in conformity with law, it would be his duty “to set it aside, and order it (the property) to be sold again; he “is not required to place upon the record the reasons by which “he is governed, either in confirming or rejecting a sale.”

It is a general rule, that where a discretion is confided to an officer or tribunal, there can be no revision, and no appeal: for that implies the liberty, or power, of acting without other control than one’s own judgment. It would he difficult to employ words, more clearly indicative of an intention to confide in the officer such a discretion, than those used in the statute. It would seem difficult for an appellate tribunal, to undertake to revise such a discretion, and say that the chief justice was not “satisfied;” or, when his judgment ought to be satisfied;— especially, when he is not required to give the reasons for his judgment. (Ibid.) He is required to affirm the sale, or not, as he may or may not be “satisfied” of its fairness; and in its very nature, it would seem, that such a discretion cannot be the subject of revision.

Again, in Yerby v. Hill, (16 Tex. Rep. 377,) it was intimated, that the merely having made an ineffectual bid, at the sale, was not such an injury as would give a right of action against the estate. We apprehend it was never intended, that it should give a right of action, or appeal. It is not the policy of the law, to subject estates to harassing and protracted litigation, at the suit of those who have sustained no appreciable injury, and will rarely have any other motive to litigate, than the hope of speeulating at the expense of the estate. Every bidder at the sale, knows that his bid is subject to the authority of the judge, to affirm it or not, and that the contract is not complete; that there is, indeed, no contract, until the sale is confirmed. Until then, he has acquired no legal right; and he can have sustained no injury, or the infraction of a legal right, by the exercise, by the judge, of the authority with which he is invested by the law, of refusing to complete the contract, and bind the estate, by an act which he deems to be prejudicial to its interest and rights.

But it is not necessary authoritatively to determine this question ; for we think it clear, that the chief justice acted rightly in refusing to confirm the sale. The order of the court, empowered the administrator to sell a sufficiency of the property, to raise the sum of four thousand dollars. This he had done, before he proceeded to' make the sale here in question. His power was then exhausted, and he was without authority to make the sale; the judge, therefore, very properly refused to confirm it. Suppose, after having sold a sufficiency of property, to satisfy the order of the court, the administrator had gone on to sell all the property of the estate. Will it he contended, that the chief justice must have confirmed the sales, if fairly made, though there might have been other debts, or even though the estate bad been insolvent ? Surely not.

We think the District Court erred in its judgment, and that it be therefore reversed, and the appeal to that court be dismissed.

Reversed and dismissed.