Box v. Lawrence

Wheeler, J. It is not perceived upon what ground the Court proceeded, in dismissing the suit, as to the defendant Lawrence. There was no necessity to pray process against Mm, in the amended petition, he being already in Court. The cause of action was not changed as to him. The change in the description of the locus in quo, did not effect a change in the cause of action; and if the prayer for relief was different and [555] broader, in the amended petition, it affected him equally with the other defendants, and clearly it was a proper subject of amendment. The bringing in of other parties, did not, of course, operate a discontinuance, as to the party previously sued. There is nothing appearing in this case, to bring it within the principle of the case of Robinson’s Heirs v. Hunt’s Heirs, and the other cases cited by counsel, which affirm the principle of that case. It is not averred, nor does it appear, that the sale of the half league to Little was made by the original grantee, prior to the issuance of his title. (Laws Coa. and Texas, Decree No. 272, of the 26th of March, 1834, Art. 29, 36.) If previously contracted for, which does not appear, the evidence is ample, that the right of the purchaser was subsequently recognized and fully conceded, both by the grantee, and his legal representatives; and Ms title is not affected by any prohibition of alienation contained in the previous laws. (Burleson v. Burleson, 11 Tex. R. 2.) We think the Court erred in dismissing the case, as to the defendant Lawrence. There was error, also, in the ruling of the Court, in reference to the effect of the transcript from the Probate Court of Shelby county, containing the copy of the will of Bolin, and its probate in that Court. The will was admitted to probate, by a Court of competent jurisdiction. The probate, though it ascertained nothing more than the original validity of the will, as such, and that the instrument, in fact, was what it purported, on its face, to be, was, until reversed or annulled, in a direct proceeding for the purpose, conclusive of that question. It cannot be drawn in question in a collateral action. This point was determined by the Supreme Court of the Republic in the case of Ingram v. Ingram, (Dallam, 519.) It is upon this principle, that the probate, being the judgment or decree of a Court of competent jurisdiction, directly upon the very point in issue, to which all persons who have any interest are, or may make themselves parties, for the purpose of contesting the validity of the will, it necessarily follows that it is conclusive, until sue [556] cessfully contested. (Jarman on Wills, 212, 213, 2nd Am. Ed.) The probate, therefore, was evidence, conclusive in this case, that the instrument was what it professed to be, the will of Bolin, the grantee of the land in question. And it was clearly admissible, as affording, by its admission, evidence of the title of Little, the vendor of the plaintiff’s intestate; not only as against the party making the admission, but also as against his privies in blood or heirs and all others claiming in his right. (1 Greenl. Ev. Sec. 189, 194.) It is immaterial to the present inquiry, that the will may not have been effectual, in so far as it attempted a disposition of property in contravention of law and the rights of heirs. It is sufficient that it is effectual, in so far as it contains admissions, which it was competent for the party to make, and which were true; or, at least, which have been acted upon by the legal representatives of the testator, and others, as true, and are not shown to be untrue. There was error also in the ruling of the Court, relative to the effect, as admissions, of the recitals in the deed of the exetors of Bolin, of the 27th of August, 1837. “In regard to re- “ citáis in deeds, the general rule is, that all parties to a deed “are bound by the recitals therein, which operate as an estop- “ pel, working on the interest in the land, if it be a deed of “ conveyance, and binding both parties and privies; privies in “blood, privies in estate, and privies in law.” (1 Greenl. Ev. 23, and notes, 5th Edit.) Estoppels arise either from matter of record, from the deed of the party, or from matter in pais, that is, of fact. An instance of estoppel by deed is, where a bond recites a certain fact. The party, executing the bond, will be precluded from afterwards denying,in any actionbrought upon it, the fact so recited. (5 Barn. & Ald. 682.) It is true, the rule is, that where a party intends to rely merely on the estoppel, as giving a right of action or a defence, he must plead it. Thus, a party may maintain ejectment upon a title by estoppel. But if he intends to rely on such title, he must plead it. And this gives rise to a kind of pleading which is neither by way of traverse, nor confession and avoidance, viz : a pleading, that, waiving [557] any question of fact, relies merely on the estoppel, and, after stating the previous act, allegation, or denial, of the opposite party, prays judgment if he shall be received, or admitted to aver contrary to what he before did or said. This pleading is called pleading by way of estoppel. (Stephen on Pl. 240.) Of course it has no application in such a state of case as the present. Whether the recitals in the deed in question, might have been relied on in pleading, in a proper case, as a technical estoppel, or not, they were admissions, which, as evidence, were sufficient proof of the facts, as against the parties making them, and privies. It is unnecessary to enter into a more particular examination of the respective rights of the parties, touching the matters in litigation. It is very clear, from the evidence contained in the record, that the plaintiff’s intestate is entitled to six hundred and forty acres of land out of the half league belonging to the elder Little, his father. Whether he will be able to establish his right to any certain parcel, or to an undivided interest, to be apportioned and set apart to him ; and, indeed, whether there has been a legal partition of the respective interests of the other parties in interest, remains to be seen, and can be better ascertained and determined upon another trial, than upon the evidence embodied in this record. The judgment is reversed and the cause remanded. Reversed and remanded.