the party, by any circumstance whatever, is put upon inquiry, which amounts, in judgment of law, to notice, provided the inquiry becomes a duty. Bouv. Law Dict. tit. 'Notice;' 4 Kent, Comm. 179; Sugd. Vend. c. 23; 1 Story, Eq. Jur. § 399, and notes. "The general doctrine is that whatever puts a party upon an inquiry amounts, in judgment of law, to notice, provided the inquiry becomes a duty, as in the case of purchasers and creditors, and would lead to the knowledge of the requisite fact, by the exercise of ordinary diligence and understanding.' 4 Kent, Comm. 179." See, also, Littleton v. Giddings, 47 Tex. 109; Bacon v. O'Connor, 25 Tex. 213; Brotherton v. Weathersby, 73 Tex. 471, 11 S. W. 505. For a terse and accurate discussion of the difference between "knowledge" and "notice," see Woolen Mills v. Sibert (decided by the supreme court of Alabama) 1 South. 773. See, also, Wade, Notice, §§ 3, 10, 36a. The burden was on Jackson to show a want of notice on his part; and the fact that he had no actual knowledge of the Waldstein title when he purchased does not negative the fact that he had received information sufficient to have put a prudent person upon such an inquiry as would, if pursued, have demonstrated the existence and validity of that title.

3. Crane cannot be protected as an innocent purchaser, even if it be conceded that the deeds under which he holds are not mere quitclaim deeds. He bought the land from M. D. Bullion, who had previously sold both the original and duplicate certificate by virtue of which it was located. As before stated, the land was patented to the railway company, the grantee named in the certificate, and not to Bullion. At the time Crane bought, the only right, real or apparent, that Bullion had to the land, rested upon the fact that it was located and patented by virtue of a duplicate certificate, the original of which once belonged to him. The testimony shows clearly and without contradiction that, before Crane consummated his deal with Bullion, the latter informed him that he had owned a great many land certificates; that he had sold some, and some he had not sold; and that he could not say whether he had sold the certificate by virtue of which this land was patented, or not. And Crane testified: "Bullion told me that he knew he had sold some of the certificates, but had not sold them all, and that I was to respect his sales when there was any evidence of them." With this information before him, Crane had no right to conclude that the land rightfully belonged to Bullion; and, considering the fact that the consideration was only $600, and that if, by his purchase from Bullion, he acquired title to any land, he probably acquired several thousand acres, we think that Crane realized that he was purchasing only the chance of title.

4. As to appellant Hume, who bought the interest which one Thornton had in the title

acquired by Crane, while it was shown that the only deed exhibited to him and his attorney before he purchased was the warranty deed to Crane, and that at that time he knew nothing of Crane's having previously taken a quitclaim deed, and while he testified that be heard nothing of the Waldstein title until after he bought, yet Crane testified as follows: "J. L. Hume advanced me the money to pay J. M. Thornton, and I gave Hume his title for this.✶✶✶ I told Hume all I knew about the matter when I was dealing with him." This evidence is not contradicted by Hume; and while it is true that, at that time, Crane knew nothing of the Waldstein claim, still he then knew that Bullion had told him, in effect, that he did not know whether this land belonged to him or not; that he had owned and sold a great many land certificates; and that he did not remember whether or not he had ever sold the one that had been applied to this land. This knowledge by Crane was an important fact concerning the title to the land; and as he swears that he told Hume all he knew about the matter, and as Hume does not deny that Crane imparted to him all that Bullion had told Crane, we conclude that, when Hume bought, he had no sufficient reason to believe that either Bullion or Crane owned the land. Besides, the testimony shows that Crane and one Thornton entered into an agreement which made them partners, at least to the extent that knowledge concerning the joint enterprise communicated to one would be imputed to the other. The object of said agreement was to purchase whatever title M. D. Bullion had to lands in Texas, excepting lands in two counties; to prosecute whatever litigation was necessary to get the title to said lands, including the land in controversy, in such shape as to render the lands marketable; and, when marketable, to sell them, reimburse Thornton the money furnished by him, pay Bullion, pay attorney's fees, etc., and divide the remainder. Before the completion of this undertaking, but after Bullion had been paid over half of the consideration agreed upon, and had executed to Crane three deeds, Hume bought out Thornton's interest in the enterprise, and agreed to furnish money for its completion. Therefore, as he took Thornton's place in the transaction before its completion, we think that he took it exactly as Thornton held it, and that whatever knowledge Crane possessed concerning the defects in Bullion's title, which the law would impute to Thornton, is also imputed to Hume; and, considering the facts hereinbefore stated as to Crane's knowledge, we do not think Hume can claim protection as an innocent pur

chaser.

5. Concerning appellant Frost, who also asks protection as an innocent purchaser, because, by contract between himself and Cummings, acting for Bullion, he was to have one-third of the lands for locating the same, it is sufficient to say that there is no evidence

whatever in the record tending to show that he did not have notice of the prior rights of the interveners at the time his rights accrued.

On the testimony in the record, the trial court correctly rendered judgment for the interveners, and it will be affirmed. Affirmed.

ADAMS et al. v. RICHARDSON'S ESTATE.1 (Court of Civil Appeals of Texas. Dec. 21, 1893.)

ADMINISTRATION DE BONIS NON-LIMITATIONS.

1. Rev. St. art. 1827, which prescribes the time within which administration shall be granted on the estate of a decedent, has no application to the granting of an administration de bonis non.

2. The land of a decedent, with the exception of one lot, omitted by mistake, was sold under order of the court to satisfy, pro tanto, a vendor's lien; and the sale was confirmed, and the administrator ordered to convey to the purchaser, the original vendor. He died without making the conveyance. Held, that administration d. b. n. was properly granted, under Rev. St. art. 1871, providing that whenever an estate is unrepresented, by reason of the death of the administrator, the court shall, if necessary, grant further administration.

3. Under article 1829, providing that, where letters have once been granted, any person interested may proceed, "after any lapse of time,' to compel settlement of the estate, it was proper to grant said letters on an application made 19 years after the last order by the heirs of said purchaser, it being alleged that they had just learned that said lot was omitted from the sale.

Appeal from district court, Galveston county; William H. Stewart, Judge.

In the matter of the estate of J. B. Richardson, deceased. From an order of the district court, Charles C. Adams and others appeal. Reversed and remanded.

A. C. Campbell, for appellants. Robert G. Street, for appellee.

PLEASANTS, J. The nature and result of the proceedings in probate, appealed from, are thus stated by appellants in their brief: "On the 8th day of March, 1892, Charles C. Adams, one of the appellants, filed in the county court of Galveston county application for letters of administration de bonis non on the estate of John B. Richardson, deceased, to issue to M. C. McLemore, Jr., alleging: That original letters issued to Mary C. Harding, who was removed on account of her failure to file inventory. Letters then issued to W. H. Hayes, who filed an inventory of the property of the estate, consisting of lots 458, 468, 475, 476, 487, 488, 495, and 496, in section 1, and 6, 7, 14, and 15, in section 2, on Galveston island, in Galveston county, making in all 129 1/10 acres of land. That C. B. Adams, petitioner's father, sold said land, and conveyed the same to said John B. Richardson by deed dated December 1, 1859, for the consideration of $645, cash paid, and Richardson's three notes for $645 each, due in one, two, and three years, and bearing in'Rehearing denied.

terest at the rate of ten per cent. per annum from December 1, 1859. That his father presented in due form his claim, based on said notes, against said estate, which was allowed by the administrator, and approved by the court, July 20, 1869, for $1,935, with 10 per cent. interest from December 1, 1859, and as a vendor's lien on said land. That the land was subsequently ordered to be sold by the court, lot 488 being omitted by mistake. Lots Nos. 455, 468, 475, 476, 487, 495, and 496, in section 1, were sold to C. B. Adams for $1,145, and lots 6, 7, 14, and 15 sold to C. B. Adams for $400. The sale was reported to the court, confirmed, and the administrator ordered to make conveyance to the purchaser, and the administrator subsequently allowed $120 for services to be paid by the purchaser of the property, and the balance to be credited on Adams' claim, and the administrator again ordered to make the conveyances to the purchaser. That the administrator died without making the conveyance. The prop

erty did not sell for sufficient to satisfy Adams' claim, and the mistake in omitting lot 488 was never corrected. That the only property remaining, belonging to Richardson's estate, is said lot 488. That it does not appear from the record that the administration has been closed. That C. B. Adams is dead, and Charles C., Martha J., and Dora P. Adams are the only children of C. B. Adams, and his surviving wife and their mother. That it was not known to them, until recently, lot 488 had not been sold to satisfy said claim, or that the conveyance had not been made for the other lots sold as stated, or that the administration of said estate had not been closed. That a necessity exists for the appointment of an administrator of said estate, in order to have said conveyance made, and said lot 488 sold to satisfy balance due on allowed claim of C. B. Adams, and proper settlement of the estate, etc. In April, 1892, the county court appointed M. C. McLemore, Jr., administrator de bonis non. In May, 1892, appellants filed their motion, asking that the administrator be ordered to make the conveyance of the property previously sold by W. H. Hayes as administrator, and tendered $120, the amount previously allowed Hayes for his services as administrator. John A. Harrington, who claimed to have purchased an interest in the property from the heirs of John B. Richardson, and Mary C. Harding, the original administratrix, who had been removed because of her failure to file inventory, and others, claiming to be the heirs of John B. Richardson, deceased, in June, 1892, filed their petition in the county court, alleging that the administration de bonis non was improperly granted, and asked that said letters of administration de bonis non on said estate of John B. Richardson be declared void for want of jurisdiction, etc. In June, 1892, the county court, by an order, declared the administration de bonis non was improperly granted,

revoked the letters, and denied the application of appellants asking that the administra. tor be ordered to make the conveyance of the property sold as aforesaid. From orders revoking the letters, and denying the application for an order requiring the administrator to make the conveyance, appellants appealed to the district court. In the district court, the matter coming on to be heard, the order revoking the appointment of M. C. McLemore, Jr., as administrator of the estate of John B. Richardson, was annulled, and said McLemore ordered to proceed to administer the estate under said appointment as the law directs; and on the same day the district court ordered, adjudged, and decreed that appellants' application for an order to said administrator to make conveyance of the land sold by his predecessor be denied. Appellants excepted to the order denying their application for an order requiring the administrator to make the conveyance, and have brought the case here by appeal."

To this statement, we add the following: The deed from Adams to Richardson conveyed the property without reserving a vendor's lien to secure the deferred payments evidenced by the three promissory notes executed by Richardson to Adams, and bearing even date with the deed of conveyance, to wit, December 1, 1859, and that the judgment of the probate court, approving the allowance of these notes by the administrator as a valid and subsisting debt due from his intestate, recites that said notes were given in part payment of the land sold to the intestate on the 1st of December, 1859, by Adams, and adjudges that a vendor's lien existed upon said land to the amount of said debt; and the order of sale directs that the land be sold by the administrator to satisfy said lien, and that the terms of the sale be cash, for a sum sufficient to pay said indebtedness, and the expenses of said sale. The land was not sold on the day named in the order of the court, and upon application of the administrator the order was reversed, and the day of sale was fixed for the first Tuesday in March, 1870; and the order of the court confirming the sale, made in pursuance of the last-recited order, on the 4th of March, A. D. 1870, directed that the administrator make deed to Adams for the land, upon his compliance with the terms of sale, and that the amount of the sale, to wit, $1,245, be credited by Adams upon his claim. But this order for compensation does not name or fix the amount due to the administrator for making the sale. The report shows that all of the lots embraced in the tract of land, save one, were sold, and purchased by Adams. The administrator did not make the conveyance as directed, and made no further report to the court until November, 1873, when, in response to a citation from the court, he reported that no other property had ever come into his hands, belonging to his intestate, save that which he,

under order of the court, had sold to Adams, in March, 1870; that neither Adams, nor any one for him, had made an offer to comply with said sale; and upon this report the court again ordered that the administrator make the conveyance to Adams, upon his paying the costs of administration, and paying to the administrator the sum of $120,— the amount fixed by the court as the compensation of the administrator for making the sale. The administrator died in January. 1874, without making the conveyance; and from November, 1873, until the filing of appellants' application, in April, 1892, for the appointment of an administrator de bonis non, no proceedings were had in said court. pertaining to the estate of Richardson. Adams sold a portion of the property, to wit, lots 476, 487, and 496 in section 1, on the 25th day of August, 1884, by deed of warranty, to Julia Kauffman; and Adams died in 1885, intestate, owing no debts, and there was no necessity for administration upon his estate. His heirs are appellants herein, and they sold, on the 5th of March, 1887, to said Kauffman, by deed of warranty, lots 6 and 15 in section 2, and said lots were all subsequently conveyed by Kauffman to Clara Kauffman. Appellants were ignorant of the fact until a short time before they filed their application for the appointment of an administrator de bonis non. That the deceased administrator, Hayes, had failed to make a conveyance of the property to the purchaser, as he was ordered to do in March, 1870, and in November, 1873. It was agreed by the parties herein that Hayes was the duly-appointed administrator de bonis non of the estate of Richardson. The persons who joined Harrington in resisting the application of appellants for appointment of administrator, and for order to convey the property to them, are the heirs of said J. B. Richardson, deceased, and from them Harrington purchased an interest in said lots; and Harrington and said heirs instituled suit in the district court of Galveston county to try title to the property in March, A. D. 1892, making the heirs of Adams, and the purchaser from Adams and his heirs, parties defendant.

The foregoing statement made by appellants, in their brief, of the nature and result of their suit, with the addition made thereto by us, embodies all of the material facts established upon the hearing of the cause be fore the district court. Upon such facts, our conclusions are that the probate court erred in revoking its order made at a previous term, granting letters of administration de bonis non upon the estate of J. B. Richardson, deceased, to M. C. McLemore, Jr.. and in refusing the application of appellants to order said McLemore to make conveyance to them of the property sold to Charles C. Adams by the administrator of the estate of J. B. Richardson in March, A. D. 1870, in obedience to an order of the probate court

of Galveston county made on the 31st of January, A. D. 1870, and that the district court of Galveston county also erred in refusing to make such order. The land was sold by order of the court (1870) for the payment of the established claim of Adams against the estate of Richardson; said claim being secured by vendor's lien on the land, previously established by judgment of said court. Adams did not, therefore, occupy the position of a purchaser without interest in the sale. When the sale was made to him for less than his claim, and the sale approved by the court, his claim against the estate was, pro tanto, paid; and he acquired an equitable title to the land, subject to a lien for the payment of the costs of the sale, and the administrator could have compelled him to pay such costs. Article 1827, Rev. St., which prescribes the time within which original administration shall be granted upon the estate of a decedent, has no application to an application for grant of an administration de bonis non. Article 1871 of the Revised Statutes provides: "Whenever an estate is unrepresented by reason of, the death, removal or resignation of the executor, or administrator, the court shall grant further administration upon such estate, when necessary, in the same manner, and under the same regulations provided for the appointment of original executors, or administrators." This article does not say that administration shall be granted under the same limitations, but under the same regulations, as provided for the appointment of original administrators. The only limitation imposed is that a necessity must exist for such further grant of administration. Article 1959, Rev. St., provides that an administrator de bonis non shall succeed to all the rights, powers, and duties of the former adminis trator; and article 1961, Id., provides that such administrator shall proceed to administer the estate as if his administration was a continuation of the administration of the former administrator. Article 1809, Id., provides that the judge of the county court shall have the same power to enforce all orders, decrees, and judgments heretofore made and rendered in the probate court of his county, as if such orders, judgments, and decrees had been made and rendered under the provisions of this title. Article 1829, Id., provides: "Where letters of administration shall have once been granted, any person interested in the administration may proceed, after any lapse of time, to compel a settlement of the estate, when it does not appear from the record that the administration thereof has been closed." Construing these articles together, the probate court had the power to grant the relief sought by appellants, and their right to such relief was not barred by the lapse of time between the death of the previous administrator of the estate and the filing of their application, in May, 1892. The record does not show that the administra

tion had been closed when appellants filed their application for the appointment of an administrator de bonis non. Vide Branch v. Hanrick, 70 Tex. 731, 8 S. W. 539.

For the errors indicated the judgment of the district court, appealed from, is reversed, and the cause remanded to that court; and it will reverse the judgment of the county court rendered in June, A. D. 1872, revoking the administration granted upon the estate of the said Richardson by said court in April, 1892, and also the judgment of said court rendered in June, 1892, refusing the application of appellants for an order requiring M. C. McLemore, Jr., the administrator of said estate, to convey to them the property described in said application upon payment by them of the sum of $120. And said district court will render a judgment in accordance with this opinion, and certify the same to the county court of Galveston county for its observance. Reversed and remanded.

HICKMAN v. HICKMAN. (Court of Civil Appeals of Texas. Nov. 1, 1893.)

SALE-VALIDITY INJUNCTION AGAINST PUR

CHASER.

1. A parol sale of horses running loose on a range, in payment of an antecedent debt, does not pass title.

2. An entry in the record of marks and brands by the clerk, by direction of the seller, to the effect that his mark and brand have been transferred to the purchaser, is not an act of sale, and does not cure the defects in a parol sale of animals, unaccompanied by actual delivery.

3. Where an attempted parol sale of horses is void, it is not error to perpetually enjoin the purchaser from handling or in any manner using them.

Appeal from district court, San Saba county; N. M. Allison, Judge.

Action by F. M. Hickman against J. W. Hickman. From a judgment for plaintiff, defendant appeals. Affirmed.

The court filed findings of fact and conclusions of law as follows: "That, in the year 1886, appellant sent from Nolan county, Texas, to the appellee, the sum of $70, to be used for the benefit of Frank Hickman, who was the son of appellee and brother of appellant, and who was then being prosecuted in Llano, Texas, charged with felony. Some months later, appellant moved from Nolan to Llano county; and about January 5, 1887, appellant executed his note to the attorney of said Frank Hickman for $100, and afterwards paid said note, and that the same was paid for the use and benefit of said Frank Hickman. That the $70 and the $100 above mentioned were paid by appellant at the request of appellee, who promised to re pay the same to appellant. That at this time, to wit, in January, 1887, and for a long time prior thereto, appellee owned the stock of horses in controversy in this suit, then num

bering about 25 head. That, at this time, appellee was indebted to W. W. Martin in about the sum of $62, balance of fee due him for legal services to said Frank Hickman, and that at this time it was the intention of appellee to defeat the payment of said debt by a transfer of his property subject to execution. That about January 5, 1887, appellee agreed with appellant to transfer the title and possession of said horses to appellant. That the consideration was the $70 and the $100 before paid by appellant for the benefit of said Frank Hickman; and, further, that the appellant was to sell as many of said horses as were necessary, or all of them, if necessary, in order to procure counsel and pay expenses necessarily incurred in getting up petitions, and procuring signatures thereto, in support of an application for pardon addressed to the governor of Texas in behalf of said Frank Hickman, who had then been tried and convicted under the aforesaid charge of felony; and that it was also the intention of appellee and appellant, by such transfer, to defeat the collection of the debt owed by appellee to said W. W. Martin. That, at the time of said attempted transfer, said horses were running loose on the range in Llano and San Saba counties, and consisted of about 25 head of stock horses; and appellee did not deliver possession of said horses to appellant at the time of said transfer, neither aid appellee at any time execute to appellant a bill of sale for said horses or other written in. strument conveying title. On January 19, 1887, appellee caused the county clerk of Llano county, Texas, to note on the record book of marks and brands of said county, on the page opposite where appellee's horse brand was recorded, the following words, to wit: "The above mark and brand was transferred to John W. Hickman, Cherokee, Texas, January 19, 1887. Witness: J. T. Warden.' At different times, and within six months after January 19, 1887, appellant gathered said horses, and placed them in pastures, where he and appellee have since continued to look after and care for them. During most of the time since January, 1887, appellant and appellee, the latter being the father of the former, have lived together in the same house as one family, jointly assisting each other about their separate business matters. In the summer of 1887, appellant bought a tract of land, and paid for same out of the horses, and on this land the parties have lived together. Appellant, since 1887, has sold eight head of said horses to different parties, for an aggregate sum of $382.50, and applied the proceeds to his own use and benefits, but at other times paid to appellee different sums of money, aggregating $115. He has also expended in breeding and pasturing said horses $30, and that his services in attending to said horses for four years are worth $200." Con

clusions of law: "(1) There being no actual delivery of said horses, and no written conveyance for the same, as required to transfer stock by mark and brand, the title of said horses has never passed from F. M. Hickman, and that he is now the owner of said horses. (2) That defendant has not had such actual and exclusive possession of said horses as would sustain his plea of limitation. (3) That defendant is indebted to plaintiff in sum of $132.50."

Walters Bros., for appellant. E. L. Rector and Rector, Thompson & Rector, for appellee.

COLLARD, J. There was no error in the conclusion of the court below that the title to the horses was in the appellee. The attempted sale by appellee to appellant was not in writing, of course not recorded, and not accompanied by delivery, the horses running loose upon the range. Rev. St. arts. 4562-4564; Black v. Vaughan, 70 Tex. 50, 7 S. W. 604; Bank v. Emery, 78 Tex. 512, 15 S. W. 23; Prude v. Campbell, 85 Tex. 4, 19 S. W. 890; Kankin v. Bell, $5 Tex. 36, 19 S. W. 874; Bank v. Brown, 85 Tex. 85, 23 S. W. 862. The attempted sale was a nullity. If it had been executed in compliance with the statute, it being to defraud creditors, appellee could not disturb appellant's rights acquired thereunder. Seeligson v. Lewis, 65 Tex. 216; Wegner v. Biering, Id. 506. Courts cannot be used to enforce or cancel such contracts. But the attempt to sell in this case amounted to nothing. It left the title to the horses in the appellee. The entry in the record of marks and brands by the clerk, by direction of appellee, to the effect that his mark and brand had been transferred to his son, the appellant, was not an act of sale, nor did it cure the defects in the original attempted sale.

The conclusion of the court that the possession of the horses, as claimed by appellant, in bar of appellee's title, was a joint possession, and was not adverse to appellee, was sustained by the testimony, and it was not error to hold that the plea of limitation was not sustained. The judgment of the court that F. M. Hickman was the owner of the horses was correct, as before seen, and it was therefore not error to perpetuate the preliminary injunction restraining J. W. Hickman from handling or in any manner using the horses. We have examined the evidence, and conclude that it cannot be said that the court awarded to defendant below a less sum on his plea in reconvention than he was entitled to under the evidence. It is not necessary to discuss the testimony. It does not show that the court, who was the judge of the credibility and weight of the testimony, has erred. The judgment of the court below is affirmed. Affirmed.