Soye v. McCallister

Wheeler, J. The plaintiffs, to maintain their action, rely on the conveyance, from the original grantee of the government, Delgado, to themselves, of the 6th of October, 1888. They insist that the deed vested in them the title, exclusive of the rights of creditors of their ancestor ; that the land conveyed constituted no part of his estate, and consequently was not subject to sale by his administrator. And to support this view, they rely upon the evidence afforded by the face of the deed itself: the fact that it conveys the land to the plaintiffs by name, for a consideration therein expressed. But it is seen that, in stating the parties to the deed, the plaintiffs, though named as the grantees, are described as the “ heirs and legal representatives of John Soye, deceased.” The conveyance, being made to them as such, must be deemed prima facie evidence that the consideration moved from their ancestor: else why convey to them as his heirs and legal representatives ? The manifest intention was, not to convey to them in their own right, irrespective of their ancestor, whom they represented, but in their right in their representative character, as the heirs and representatives of their deceased father. The consequence is, that they took the estate, as they did whatever other estate they inherited from their ancestor, subject to the payment of his debts. It became assets in the hands of his administrator. [98] Such is the prima fade conclusion to be deduced from the face of the deed. But it does not rest alone on the proper construction of the instrument. It is in proof that, in December, 1833, the plaintiff’s grantor executed to their ancestor an obligation, showing a sale to him of the land, for a consideration acknowledged to have been received, and agreeing, when the legal inhibition should cease, to make to him a title, or in case of his death, to make the title to his widow and heirs. It is unnecessary now to discuss the question whether this agreement was, to all intents and purposes, null; or was only in so far inoperative and ineffectual as that it could not be enforced unless it was validated by the grantee after the removal of the legal impediment; or unless there were supervening equities which had the effect to make good the title in the purchaser. Whatever theoretical opinion may be entertained of the question, it cannot be denied that, practically, the latter view of it has been maintained. (1 Tex. R. 748; Hunt v. Turner, 9 Tex. R. 385; Box v. Lawrence, 14 Id. 545.) But though it be utterly void, the agreement is, nevertheless, a fact, which may be looked to, to ascertain the motive and consideration, which actuated the grantor to make the subsequent conveyance to the plaintiffs. It is equally significant of the intention of the party, as if it had been operative, and effectual to bind him to its performance. It is further inferable that the consideration moved from the ancestor, from the fact, that the plaintiffs were not of sufficient age to contract and make purchases ; and that the conveyance was intended to operate in favor of the estate, from the fact that it was so treated by the administrator at the time, and by the plaintiffs themselves until the bringing of this suit; as appears by the petition in the former suit instituted by them for the land in question. That it was so made and intended in fact, is-evident, as well from the face of the deed itself, which was matter of legal construction by the Court, as from the other facts referred to, which were evidence for the [99] jury. There being nothing in the evidence to countervail theprima fade presumption, arising from the face of the deed, that the conveyance was virtually and beneficially for the estate, but the contrary, there was no error in the charge of the Court upon that subject. The objections to the validity of the administrator's sale, and the title derived by the defendants under it, have been, considered and answered in former decisions, to which it will suffice to refer for their disposition in the present case. (Poor v. Boyce, 12 Tex. R. 309; Howard v. Bennett, 13 Tex. R. 309; Dancy v. Stricklinge, 15 Tex. R. 557; Burditt v. Silsbee, Id. 604.) There is an interesting decision, lately made by the Supreme Court of Georgia, upon the effect which ought to be given to the proceedings of Probate Courts in the sale of the estates of deceased persons, to which we have been referred by the counsel for the appellants in another case now before the Court. It is admitted that, in that case, the Court went quite as far as this Court has gone in maintaining the doctrines which support the titles of fair purchasers at those sales. In a very learned and elaborate opinion by Judge Lumpkin, the legal propriety and necessity of upholding these titles, fairly acquired, are strongly insisted upon, and maintained upon authority and reasons which seem unanswerable. (Tucker v. Haris, 13 Ga. R. 1.) The principal objection to the sale in the present case, is, that it does not appear that the term of administration was continued down to the period of the sale. The administrator, however, continued to act under the sanction of the Probate Court; and there is more than the usual apparent regularity in the proceedings, in other respects. That the absence in the record, of any evidence of the extension by the Court of the term of administration, does not invalidate the title of the purchaser, has been fully settled in the cases referred to. It is further objected to the title of the purchaser at the administrator’s sale, that there does not appear to have been any [100] administration taken upon the estate of the wife of John Soye. Both departed this life about the same time. The debts for ■Which the property was sold were community debts. Such, at least, is the presumption ; and. we ¡jare of opinion that there was no necessity of two administrations upon the same property, to pay debts, for which it must have been equally liable, in the hands of the administrator of either or both óf the decedents. (Jones v. Jones, 15 Tex. R; 143; Berry v. Young, Id. 369.) It is unnecessary to revise the several rulings of the Court upon instructions to the jury ; for the reason that, under the evidence and law of the case, they could not legally have returned a different verdict. There is no error in the judgment, and it is affirmed. Judgment affirmed.