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the party, by any circumstance whatever, is acquired by Crane, while it was shown that put upon inquiry, which amounts, in judg- the only deed exhibited to him and his attorment of law, to notice, provided the inquiry ney before he purchased was the warranty becomes a duty. Bouv. Law Dict. tit. “No- deed to Crane, and that at that time he knew tice;' 4 Kent, Comm. 179; Sugd. Vend. c. 23; nothing of Crane's having previously taken a 1 Story, Eq. Jur. $ 399, and notes. "The gen- quitclaim deed, and while he testified that he eral doctrine is that whatever puts a party heard nothing of the Waldstein title until upon an inquiry amounts, in judgment of after he bought, yet Crane testified as follows: law, to notice, provided the inquiry becomes "J. L. Hume advanced me the money to pay a duty, as in the case of purchasers and cred- J. M. Thornton, and I gave Hume his title for itors, and would lead to the knowledge of this. * * * I told Hume all I knew about the requisite fact, by the exercise of ordinary the matter when I was dealing with him." diligence and understanding.' 4 Kent, Comm. This evidence is not contradicted by Hume; 179." See, also, Littleton v. Giddings, 47 and while it is true that, at that time, Crane Tex. 109; Bacon v. O'Connor, 25 Tex. 213; knew nothing of the Waldstein claim, still he Brotherton v. Weathersby, 73 Tex. 471, 11 then knew that Bullion had told him, in efS. W. 505. For a terse and accurate discus- fect, that he did not know whether this land sion of the difference between "knowledge" belonged to him or not; that he had owned and "notice," see Woolen Mills v. Sibert (de- and sold a great many land certificates; and cided by the supreme court of Alabama) 1 that he did not remember whether or not he South, 773. See, also, Wade, Notice, 8$ 3, 10, had ever sold the one that had been applied 36a. The burden was on Jackson to show to this land. This knowledge by Crane was a want of notice on his part; and the fact an important fact concerning the title to the that he had no actual knowledge of the Wald- land; and as he swears that he told Hume all stein title when he purchased does not nega- he knew about the matter, and as Hume does tive the fact that he had received informa- not deny that Crane imparted to him all that tion sufficient to have put a prudent person Bullion had told Crane, we conclude that, upon such an inquiry as would, if pursued, when Hume bought, he had no sufficient reahave demonstrated the existence and validity son to believe that either Bullion or Crane of that title.

owned the land. Besides, the testimony 3. Crane cannot be protected as an innocent shows that Crane and one Thornton entered purchaser, even if it be conceded that the into an agreement which made them partdeeds under which he holds are not mere ners, at least to the extent that knowledge quitclaim deeds. He bought the land from concerning the joint enterprise communicated M. D. Bullion, who had previously sold both to one would be imputed to the other. The the original and duplicate certificate by vir- object of said agreement was to purchase tue of which it was located. As before whatever title M. D. Bullion had to lands in stated, the land was patented to the railway Texas, excepting lands in two counties; to company, the grantee named in the certifi- | prosecute whatever litigation was necessary cate, and not to Bullion. At the time Crane to get the title to said lands, including the bought, the only right, real or apparent, that land in controversy, in such shape as to renBullion had to the land, rested upon the fact der the lands marketable; and, when marketthat it was located and patented by virtue of able, to sell them, reimburse Thornton the a duplicate certificate, the original of which money furnished by him, pay Bullion, pay atonce belonged to him. The testimony shows torney's fees, etc., and divide the remainder. clearly and without contradiction that, be- Before the completion of this undertaking, fore Crane consummated his deal with Bul- but after Bullion had been paid over half of lion, the latter informed him that he had the consideration agreed upon, and had exeowned a great many land certificates; that cuted to Crane three deeds, Hume bought out he had sold some, and some he had not sold; Thornton's interest in the enterprise, and and that he could not say whether he had agreed to furnish money for its completion. sold the certificate by virtue of which this Therefore, as he took Thornton's place in the land was patented, or not. And Crane testi- transaction before its completion, we think fied: "Bullion told me that he knew he had that he took it exactly as Thornton held it, sold some of the certificates, but had not sold and that whatever knowledge Crane posthem all, and that I was to respect his sales sessed concerning the defects in Bullion's when there was any evidence of them." title, which the law would impute to ThornWith this information before him, Crane bad ton, is also imputed to Hume; and, considerno right to conclude that the land rightfully ing the facts hereinbefore stated as to belonged to Bullion; and, considering the fact Crane's knowledge, we do not think Hume that the consideration was only $600, and can claim protection as an innocent purthat if, by his purchase from Bullion, he ac- chaser. quired title to any land, he probably acquired 5. Concerning appellant Frost, who also several thousand acres, we think that Crane asks protection as an innocent purchaser, berealized that he was purchasing only the cause, by contract between himself and Cumchance of title.

mings, acting for Bullion, he was to have 4. As to appellant Hume, who bought the one-third of the lands for locating the same, interest which one Thornton had in the title it is sufficient to say that there is no evidence whatever in the record tending to show that terest at the rate of ten per cent. per annum he did not have notice of the prior rights of from December 1, 1859. That his father pre the interveners at the time his rights accrued. sented in due form his claim, based on said

On the testimony in the record, the trial notes, against said estate, which was allowed court correctly rendered judgment for the in- by the administrator, and approved by the terveners, and it will be affirmed. Affirmed. 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 ADAMS et al. v. RICHARDSON'S ESTATE.1

court, lot 488 being omitted by mistake. Lots

Nos. 455, 468, 475, 476, 487, 495, and 496, in (Court of Civil Appeals of Texas. Dec. 21,

section 1, were sold to C. B. Adams for $1,1893.)

145, and lots 6, 7, 14, and 15 sold to C. B. ADMINISTRATION DE Bonis Nox-LIMITATIONS.

Adams for $400. The sale was reported to 1. Rev. St. art. 1827, which prescribes the time within which administration shall be

the court, confirmed, and the administrator granted on the estate of a decedent, has no ordered to make conveyance to the purchaser, application to the granting of an administra- and the administrator subsequently allowed tion de bonis non.

$120 for services to be paid by the purchaser 2. The land of a decedent, with the exception of one lot, omitted by mistake, was sold

of the property, and the balance to be credunder order of the court to satisfy, pro tanto, a ited on Adams' claim, and the administrator vendor's lien; and the sale was confirmed, and again ordered to make the conveyances to the administrator ordered to convey to the purchaser,-the original vendor. He died with

the purchaser. That the administrator died out making the conveyance. Held, that admin

without making the conveyance. The propistration d. b. n. was properly granted, under erty did not sell for sufficient to satisfy Rev. St. art. 1871, providing that whenever an Adams' claim, and the mistake in omitting estate is unrepresented, by reason of the death

lot 488 was never corrected. That the only of the administrator, the court shall, if necessary, grant further administration.

property remaining, belonging to Richard3. Under article 1829, providing that, where son's estate, is said lot 488. That it does not letters have once been granted, any person in

appear from the record that the administraterested may proceed, “after any lapse of time," to compel settlement of the estate, it was prop

tion has been closed. That C. B. Adams is er to grant said letters on an application made dead, and Charles C., Martha J., and Dora P. 19 years after the last order by the heirs of Adams are the only children of C. B. Adams, said purchaser, it being alleged that they had just learned that said lot was omitted from the

and his surviving wife and their mother. That sale.

it was not known to them, until recently, lot

488 had not been sold to satisfy said claim, Appeal from district court, Galveston coun

or that the conveyance had not been made ty; William H. Stewart, Judge.

for the other lots sold as stated, or that the In the matter of the estate of J. B. Richard

administration of said estate had not been son, deceased. From an order of the dis

closed. That a necessity exists for the aptrict court, Charles C. Adams and others appointment of an administrator of said estate, peal. Reversed and remanded.

in order to have said conveyance made, and A. C. Campbell, for appellants. Robert G. said lot 488 sold to satisfy balance due on alStreet, for appellee.

lowed claim of C. B. Adams, and proper set

tlement of the estate, etc. In April, 1892, PLEASANTS, J. The nature and result of the county court appointed M. C. McLemore, the proceedings in probate, appealed from, Jr., administrator de bonis non. In May, are thus stated by appellants in their brief: 1892, appellants filed their motion, asking "On the 8th day of March, 1892, Charles C. that the administrator be ordered to make Adams, one of the appellants, filed in the the conveyance of the property previously county court of Galveston county application sold by W. H. Hayes as administrator, and for letters of administration de bonis non on tendered $120, the amount previously althe estate of John B. Richardson, deceased, lowed Hayes for his services as administrato issue to M. C. McLemore, Jr., alleging: tor. John A. Harrington, who claimed to That original letters issued to Mary C. Hard- have purchased an interest in the property ing, who was removed on account of her fail- from the heirs of John B. Richardson, and ure to file inventory. Letters then issued to Mary C. Harding, the original administraW. H. Hayes, who filed an inventory of the trix, who had been removed because of her property of the estate, consisting of lots 458, failure to file inventory, and others, claiming 468, 475, 476, 487, 488, 495, and 496, in section to be the heirs of John B. Richardson, de 1, and 6, 7, 14, and 15, in section 2, on Gal- ceased, in June, 1892, filed their petition in reston island, in Galveston county, making the county court, alleging that the adminisin all 129 1/10 acres of land. That C. B. tration de bonis non was improperly grantAdams, petitioner's father, sold said land, ed, and asked that said letters of administra. and conveyed the same to said John B. Rich- tion de bonis non on said estate of John B. ardson by deed dated December 1, 1859, for Richardson be declared void for want of the consideration of $645, cash paid, and jurisdiction, etc. In June, 1892, the county Richardson's three notes for $645 each, due court, by an order, declared the administrain one, two, and three years, and bearing in- tion de bonis non was improperly granted,

* Rehearing denied.

revoked the letters, and denied the applica- , under order of the court, had sold to Adams, tion of appellants asking that the administra. in March, 1870; that neither Adams, nor any tor be ordered to make the conveyance of the one for him, had made an offer to comply property sold as aforesaid. From orders re- with said sale; and upon this report the voking the letters, and denying the applica- court again ordered that the administrator tion for an order requiring the administrator make the conveyance to Adams, upon his to make the conveyance, appellants appealed paying the costs of administration, and pay. to the district court. In the district court, ing to the administrator the sum of $120,the matter coming on to be heard, the order the amount fixed by the court as the compenrevoking the appointment of M. C. McLe sation of the administrator for making the more, Jr., as administrator of the estate of sale. The administrator died in January, John B. Richardson, was annulled, and said 1874, without making the conveyance; and McLemore ordered to proceed to administer from November, 1873, until the filing of apthe estate under said appointment as the law pellants' application, in April, 1892, for the directs; and on the same day the district appointment of an administrator de bonis court ordered, adjudged, and decreed that ap- non, no proceedings were had in said court, pellants' application for an order to said ad- pertaining to the estate of Richardson. Administrator to make conveyance of the land ams sold a portion of the property, to wit, lots sold by his predecessor be denied. Appel- 476, 487, and 496 in section 1, on the 25th lants excepted to the order denying their ap- day of August, 1884, by deed of warranty, plication for an order requiring the adminis- to Julia Kauffman; and Adams died in 1885, trator to make the conveyance, and have intestate, owing no debts, and there was no brought the case here by appeal."

necessity for administration upon his estate. To this statement, we add the following: His heirs are appellants herein, and they The deed from Adams to Richardson con- sold, on the 5th of March, 1887, to said veyed the property without reserving a ven- Kauffman, by deed of warranty, lots 6 and 15 dor's lien to secure the deferred payments in section 2, and said lots were all subseevidenced by the three promissory notes exe- quently conveyed by Kauffman to Clara cuted by Richardson to Adams, and bear- Kauffman. Appellants were ignorant of the ing even date with the deed of conveyance, fact until a short time before they filed their to wit, December 1, 1859, and that the judg-, application for the appointment of an adment of the probate court, approving the al- ministrator de bonis non. That the delowance of these notes by the administrator ceased administrator, Hayes, had failed to as a valid and subsisting debt due from his make a conveyance of the property to the purintestate, recites that said notes were given chaser, as he was ordered to do in March, in part payment of the land sold to the in- 1870, and in November, 1873. It was agreed testate on the 1st of December, 1859, by by the parties herein that Hayes was the Adams, and adjudges that a vendor's lien duly-appointed administrator de bonis non existed upon said land to the amount of said of the estate of Richardson.

The persons debt; and the order of sale directs that the who joined Harrington in resisting the apland be sold by the administrator to satisfy plication of appellants for appointment of said lien, and that the terms of the sale be administrator, and for order to convey the cash, for a sum sufficient to pay said indebt- property to them, are the heirs of said J. B. edness, and the expenses of said sale. The Richardson, deceased, and from them Harland was not sold on the day named in the rington purchased an interest in said lots; order of the court, and upon application of and Harrington and said heirs instituied the administrator the order was reversed, suit in the district court of Galveston county and the day of sale was fixed for the first to try title to the property in March, A. D. Tuesday in March, 1870; and the order of 1892, making the heirs of Adams, and the the court confirming the sale, made in pur- purchaser from Adams and his heirs, parsuance of the last-recited order, on the 4th ties defendant. of March, A. D. 1870, directed that the ad- The foregoing statement made by appelininistrator make deed to Adams for the lants, in their brief, of the nature and result land, upon his compliance with the terms of of their suit, with the addition made theretv sale, and that the amount of the sale, to wit, by us, embodies all of the material facts es$1,245, be credited by Adams upon his claim. tablished upon the hearing of the cause be But this order for compensation does not fore the district court. Upon such facts, name or fix the amount due to the adminis- our conclusions are that the probate court trator for making the sale. The report erred in revoking its order made at a preshows that all of the lots embraced in the vious term, granting letters of administration tract of land, save one, were sold, and pur- de bonis non upon the estate of J. B. Richchased by Adams. The administrator did ardson, deceased, to M. C. McLemore, Jr., not make the conveyance as directed, and and in refusing the application of appellants made no further report to the court until No- to order said McLemore to make conveyance vember, 1873, when, in response to a citation to them of the property sold to Charles C. from the court, he reported that no other Adams by the administrator of the estate of property had ever come into his hands, be- J. B. Richardson in March, A. D. 1870, in longing to his intestate, save that which he, obedience to an order of the probate court

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of Galveston county made on the 31st of tion had been closed when appellants filed January, A. D. 1870, and that the district their application for the appointment of an court of Galveston county also erred in re- administrator de bonis non. Vide Branch fusing to make such order. The land was v. Hanrick, 70 Tex. 731, 8 S. W. 539. sold by order of the court (1870) for the pay. For the errors indicated the judgment of ment of the established claim of Adams the district court, appealed from, is reversed, against the estate of Richardson; said claim and the cause remanded to that court; and being secured by vendor's lien on the land, it will reverse the judgment of the county previously established by judgment of said court rendered in June, A. D. 1872, revoking court. Adams did not, therefore, occupy the the administration granted upon the estate position of a purchaser without interest in of the said Richardson by said court in April, the sale. When the sale was made to him 1892, and also the judgment of said court for less than his claim, and the sale approved rendered in June, 1892, refusing the applicaby the court, his daim against the estate tion of appellants for an order requiring M. was, pro tanto, paid; and he acquired an eq. C. McLemore, Jr., the administrator of said uitable title to the land, subject to a lien for estate, to convey to them the property dethe payment of the costs of the sale, and scribed in said application upon payment by the administrator could have compelled him them of the sum of $120. And said district to pay such costs. Article 1827, Rev. St., court will render a judgment in accordance which prescribes the time within which orig- with this opinion, and certify the same to the inal administration shall be granted upon the county court of Galveston county for its obestate of a decedent, has no application to an servance. Reversed and remanded. 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, re

HICKMAN V. HICKMAN. moval or resignation of the executor, or ad- (Court of Civil Appeals of Texas. Nov. 1, ministrator, the court shall grant further

1893.) administration upon such estate, when nec

SALE_VALIDITY-INJUNCTION AGAINST PURessary, in the same manner, and under the same regulations provided for the appoint

1. A parol sale of horses running loose ment of original executors, or administra

on a range, in payment of an antecedent debt, tors.” This article does not say that admin- does not pass title. istration shall be granted under the same

2. An entry in the record of marks and

brands by the clerk, by direction of the seller, limitations, but under the same regulations, to the effect that his mark and brand have as provided for the appointment of original been transferred to the purchaser, is not an administrators. The only limitation imposed

act of sale, and does not cure the defects in

a parol sale of animals, unaccompanied by acis that a necessity must exist for such fur

tual delivery. ther grant of administration, Article 1959, 3. Where an attempted parol sale of horses Rev. St., provides that an administrator de is void, it is not error to perpetually enjoin the bonis non shall succeed to all the rights,

purchaser from handling or in any manner us

ing them. powers, and duties of the former administrator; and article 1961, Id., provides that

Appeal from district court, San Saba counsuch administrator shall proceed to adminis- ty; N. M. Allison, Judge. ter the estate as if his administration was Action by F. M. Hickman against J. W. a continuation of the administration of the

Hickman. From judgment for plaintiff, deformer administrator. Article 1809, Id., pro- tendant appeals. Affirmed. vides that the judge of the county court The court filed findings of fact and conshall have the same power to enforce all or- clusions of law as follows: “That, in the ders, decrees, and judgments heretofore made year 1886, appellant sent from Nolan counand rendered in the probate court of his ty, Texas, to the appellee, the sum of $70, county, as if such orders, judgments, and de to be used for the benefit of Frank Hickcrees had been made and rendered under man, who was the son of appellee and broththe provisions of this title. Article 1829, Id., er of appellant, and who was then being prosprovides: "Where letters of administration ecuted in Llano, Texas, charged with felony. shall have once been granted, any person in- Some months later, appellant moved from terested in the administration may proceed, Nolan to Llano county; and about January after any lapse of time, to compel a settlement 5, 1887, appellant executed his note to the atof the estate, when it does not appear from torney of said Frank Hickman for $100, and the record that the administration thereof has afterwards paid said note, and that the same been closed.” Construing these articles to- was paid for the use and benefit of said gether, the probate court had the power to Frank Hickman. That the $70 and the $100 grant the relief sought by appellants, and above mentioned were paid by appellant at their right to such relief was not barred by the request of appellee, who promised to re the lapse of time between the death of the pay the same to appellant. That at this time, previous administrator of the estate and the to wit, in January, 1887, and for a long time filing of their application, in May, 1892. The prior thereto, appellee owned the stock of record does not show that the administra- horses in controversy in this suit, then numbering about 25 head. That, at this time, clusions of law: "(1) There being no actual appellee was indebted to W. W. Martin in delivery of said horses, and no written conabout the sum of $62, balance of fee due him veyance for the same, as required to transfer for legal services to said Frank Hickman, stock by mark and brand, the title of said and that at this time it was the intention of horses has never passed from F. M. Hickappellee to defeat the payment of said debt man, and that be is now the owner of said by a transfer of his property subject to ex- horses. (2) Tbat defendant has not had such ecution. That about January 5, 1887, ap- actual and exclusive possession of said horses pellee agreed with appellant to transfer the as would sustain his plea of limitation. (3) title and possession of said horses to appel- That defendant is indebted to plaintiff in lant. That the consideration was the $70 sum of $132.50." and the $100 before paid by appellant for the

Walters Bros., for appellant. E. L. Rector benefit of said Frank Hickman; and, further,

and Rector, Thompson & Rector, for appellee. 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 COLLARD, J. There was no error in the pay expenses necessarily incurred in getting conclusion of the court below that the title to up petitions, and procuring signatures there

the horses was in the appellee. The attemptto, in support of an application for pardon ed sale by appellee to appellant was not in addressed to the governor of Texas in behalf writing, of course not recorded, and not acof said Frank Hickman, who had then been companied by delivery, the horses running tried and convicted under the aforesaid charge loose upon the range. Rev. St. arts. 4362-4564; of felony; and that it was also the intention Black v. Vaughan, 70 Tex. 50, 7 S. W. 604; of appellee and appellant, by such transfer, Bank v. Emery, 78 Tex. 512, 15 S. W. 23; to defeat the collection of the debt owed by Prude v. Campbell, 85 Tex. 4, 19 S. W. 890; appellee to said W. W. Martin. That, at the Kankin v. Bell, 35 Tex. 36, 19 S. W. 874; Bank time of said attempted transfer, said horses V. Brown, 85 Tex. 85, 23 S. W. 862. The atwere running loose on the range in Llano and tempted sale was a nullity. If it had been San Saba counties, and consisted of about 23 executed in compliance with the statute, it head of stock horses; and appellee did not being to defraud creditors, appellee could not deliver possession of said horses to appellant disturb appellant's rights acquired thereunat the time of said transfer, neither aid ap- der. Seeligson v. Lewis, 65 Tex. 216; Wegpellee at any time execute to appellant a bill ner v. Biering, Id. 506. Courts cannot be of sale for said horses or other written in. used to enforce or cancel such contracts. strument conveying title. On January 19, But the attempt to sell in this case amounted 1887, appellee caused the county clerk of to nothing. It left the title to the horses in Llano county, Texas, to note on the record the appellee. The entry in the record of book of marks and brands of said county, on marks and brands by the clerk, by direction of the page opposite where appellee's borse appellee, to the effect that his mark and brand was recorded, the following words, to brand had been transferred to his son, the wit: "The above mark and brand was trans- appellant, was not an act of sale, nor did it ferred to John W. Hickman, Cherokee, Texas, cure the defects in the original attempted January 19, 1887. Witness: J. T. Warden.' sale. At different times, and within six months aft- The conclusion of the court that the posseser January 19, 1887, appellant gathered said sion of the horses, as claimed by appellant, horses, and placed them in pastures, where in bar of appellee's title, was a joint posses he and appellee have since continued to look sion, and was not adverse to appellee, was after and care for them. During most of the sustained by the testimony, and it was not ertime since January, 1887, appellant and ap- ror to hold that the plea of limitation was not pellee, the latter being the father of the for- sustained. The judgment of the court that mer, have lived together in the same house F. M. Hickman was the owner of the horses as one family, jointly assisting each other was correct, as before seen, and it was thereabout their separate business matters. In fore not error to perpetuate the preliminary the summer of 1887, appellant bought a tract injunction restraining J. W. Hickman from of land, and paid for same out of the horses, handling or in any manner using the horses. and on this land the parties have lived to- We have examined the evidence, and congether. Appellant, since 1887, has sold eight clude that it cannot be said that the court head of said horses to different parties, for an awarded to defendant below a less sum on aggregate sum of $382.50, and applied the his plea in reconvention than he was entitled proceeds to his own use and benefits, but at to under the evidence. It is not necessary other times paid to appellee different sums of to discuss the testimony. It does not show money, aggregating $115. He has also ex- that the court, who was the judge of the pended in breeding and pasturing said horses credibility and weight of the testimony, has $30, and that his services in attending to said erred. The judgment of the court below is borses for four years are worth $200." Con- | afflrmed. Affirmed.

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