Greene v. Cass County State Bank

BEVY,' J. (after stating the facts as above). The appellants urge that they were legally entitled to the relief of cancellation of the administrator’s deed, as constituting a cloud upon the title to the land, because it was conclusively proven that, at the death of their father, Riley Greene, the land was his homestead in fact, and a minor son, a constituent member of the family, survived the owner of the homestead, and the debt for which the land was sold to pay was a simple debt of the decedent’s. Such recited facts appear agreed to by the parties. It is the established rule in this state that, in virtue of the Constitution and laws, the homestead on the death of the owner descends and vests absolutely in the heirs if a constituent member of the family survives, and is not assets in the hands of the administrator subject to the payment of the simple debts of the decedent. Section 52, art. 16, Constitution; Cameron v. Morris, 83 Tex. 14, 18 S. W. 422; Zwernemann v. Von Rosenburg, 76 Tex. 522, 13 S. W. 485; Childers v. Henderson, 76 Tex. 664, 13 S. W. 481; Lacy v. Lockett, 82 Tex. 190, 17 S. W. 916; Roots v. Robertson, 93 Tex. 365, 55 S. W. 308; Allen v. Ramey (Tex. Civ. App.) 226 S. W. 489 ; Cline v. Niblo (Tex. Civ. App.) 286 S. W. 298; Id. (Tex. Com. App.) 292 S. W. 178; and other cases. The law being as thus stated, the appellants may not legally be denied the relief sought unless grounds further and independently exist as a legal or equitable reason therefor. It is asserted that there was no probate order setting apart the homestead for the use of the minor, and that the probate proceedings being regular and in form, vesting the land in appellee, the same may not be attacked collaterally. The order setting apart the homestead for use operates merely upon possession of the land, as between the heirs. The actual setting apart of the homestead in fact by the probate court is not essential to the vesting of the title thereto in the heirs. Bonding Co. v. Logan, 106 Tex. 306, 166 8. W. 1132; Id. (Tex. Civ. App.) 167 S. W. 771; Griffie v. Maxey, 58 Tex. 210; Scott v. Cunningham, 60 Tex. 566. The ab sence of such order does not affect the exemption of the homestead from the simple debts or the rights of those owning it. Simms v. Dixon (Tex. Civ. App.) 65 S. W. 36. The exemption of the homestead from ordinary debts is absolute. Dorman v. Grace, 57 Tex. Civ. App. 386, 122 S. W. 401. The land, as shown, being homestead in fact, it did not become a rightful subject-matter of administration. The debt owing by the decedent as admitted was an ordinary and simple debt, and not a lien upon the property. The administration was at the instance, and its object was the special benefit, of appellee, in order to have sale of the land to pay an ordinary and simple debt owing by the decedent. No other ground was urged for the administration. Therefore the order of the probate court directing the sale of the land was void for lack of power to make it, and the sale could be attacked collaterally. Allen v. Ramey (Tex. Civ. App.) 226 S. W. 489; Cline v. Niblo (Tex. Civ. App.) 286 S. W. 298. Ap-pellee could not acquire any title under a legally void sale by the administrator. It" may be observed in this connection, although the fact seems not to have been brought to the attention of the trial court, that the land was the community property of Riley Greene and his wife, who died before Riley Greene died. Her interest was in no wise li *623 able for tbe subsequently contracted debt of Riley Greene. It is next urged tbat tbe judgment is supported and cancellation of tbe deed was properly denied upon tbe ground of estoppel arising from tbe conduct of tbe appellants. Tbis point seems to bave been stressed before tbe trial court as controlling the case. .As tbe facts appear in tbe present record, however, it is believed tbat laches amounting to an estoppel may not be imputed to appellants in bar of tbe relief sought. While tbe minor, Solomon Greene, removed from tbe premises shortly after the death of bis father, yet, as admitted, “be claimed it (tbe premises) as bis homestead and kept his belongings there.” Tbe title appellants bad in tbe premises vested absolutely at once upon tbe death of their father, and was in no wise dependent upon their continuing to reside upon and actually use the premises. So far as appears, appellants did no positive acts, nor made any representations respecting tbe probate proceedings, inducing tbe sale of the land to appellee. It is merely shown as follows: “That at tbe time of tbe administration of the said estate and of tbe sale of the land the plaintiffs bad notice of all tbe proceedings, and none of them made any manner of claim for any of said property, and made no application that any of said property should be set aside to tbe minor, Solomon Greene, or tbat any of same was exempt as a homestead.” It cannot be said tbat the heirs undertook to bave tbe debt of their father paid tbat way. The mere failure to object to tbe proceedings could, not be construed as having tbat effect, or as ratifying tbe sale of tbe land for tbat purpose. Tbe position of appellee in nowise changed before or after tbe purchase. It merely bought tbe land for its debt. Quoting from Paul v. Willis, 69 Tex. 261, 7 S. W. S57: “A void judgment cannot bind any one, and it is well settled [tbat] it may be collaterally attacked. Lapse of time cannot aid it or give it any force as a judgment. These administrations being nullities, the heirs of Byrne forfeited no right by failing to set it aside or by delay 'in suing for the land.” As well established, an administrator’s sale of property not belonging to tbe debtor will not estop tbe owner from asserting bis title. And especially under the circumstances of tbe instant case it would contravene tbe policy of tbe law, in respect to tbe descent of tbe homestead, to impute laches to tbe minor son. The judgment is reversed, and judgment is here entered in favor of appellants in cancellation of tbe administrator’s deed, as prayed for. Tbe costs of the appeal and of tbe trial court will be taxed against tbe ap-pellee.