Herndon v. Heirs of Kuykendall

Delany, J. Com. App. Counsel for plaintiffs in error do not, in their brief, insist upon the fifth assignment of error, Avhich questions the right of the original plaintiff, John M. Kuykendall, to the writ of certiorari. The statute in force at that tune (Pasch. Dig., art. 480) provided that any person interested, who might desire to have the proceedings of the county courts pertaining to estates revised and corrected, might do so by application to the judge of the district court for the writ. [348] The position taken by counsel for the defendants below was, that the plaintiff, having sold the league of land before the filing of the suit, was not a person interested in the estate within the meaning of the statute, even though he may have repurchased the land before suit commenced. Tor in the latter case, they maintained be would hold the land, not as the heir of A. L. Kuykendall, but as a purchaser from J. B. Kuykendall. He was nevertheless a person interested within the meaning of the statute, as there was other property which he claimed as heir. Counsel for plaintiffs in error present us with several propositions which we will consider, without, however, following the order in which they are presented: 1st. “The jurisdiction being established, all presumptions must be made in favor of what does not appear.” This rule is so well settled as to render its discussion unnecessary ; but it is generally applied to cases in which the action of the court is called in question in some collateral proceeding. Illustrations of the rule, and of its general application, will be found in the cases of Alexander v. Maverick, 18 Tex., 179; Burdett v. Silsbee, and Dancy v. Stricklinge, 15 Tex., 557. In each of these cases, the sales made by the probate court were collaterally attacked. The purchasers had bought in good faith, and were strangers to the proceedings in the probate court. They had bought relying upon the judgment of a court of competent jurisdiction, and to protect their interests every reasonable presumption would be indulged in favor of the correctness of the court’s action. In Dancy v. Stricklinge, referred to above, Justice Wheeler, after referring to certain liberal presumptions which were made in the case of Townsend v. Munger, 9 Tex., 300, says: “ It would not be going further to indulge a like presumption in the present case, when the authority of the administrator is thus collaterally brought in question, for the purpose of invalidating the title of a bona ficje purchaser in a proceeding in which the administrator who might have had it in his power, had his authority been questioned in proper -time, cannot be called in to show his authority to act in the premises.” In the case of Burdett v. Silsbee, 15 Tex., 617, the same learned judge remarks as follows: “If this were a suit or proceeding in which the authority of the administrator was directly instead of "being collaterally drawn in question, it might be subjected to a severer scrutiny. But the case is different when his authority is thus drawn in question in a collateral action for the purpose of invalidat [349] ing the title of a purchaser at the administrator’s sale. When sales have been thus made, and confirmed by the judgment of a court of competent jurisdiction, it is well settled that the judgment, unless impeached for fraud, cannot be drawn in question in a collateral action.” In the ease now before ns, the proceeding was not collateral but direct. The purchaser at the sale was not a stranger, but was the attorney of one of the administrators, and was familiar with all the facts. He ánd the two administrators were brought before the court. Every opportunity for explanation was given. The charge' was that the purchase was fraudulent, and that the purchaser had used the administrators as his instruments in perpetrating the fraud. Hpon this branch of the case counsel present this proposition: “ The judgments of courts will not be set aside on mere surmises or suspicions; but there must be evidence to establish the fraud that does naturally and reasonably tend to that conclusion.” 1 Story’s Eq., sec. 190. The correctness of this general proposition will not be questioned. But in the present case it was not to be expected that the plaintiff should produce full and ample proof. His case was grounded upon negative allegations. He averred that the estate of A. L. Kuykendall owed no debts; that there was no necessity for administration, and that the pretended debts were fabricated by the defendants in order to attain a sale of the property. These negative allegations he was required to support only by prima facie proof. 1 Greenl. Ev., sec. 78. This he did when he brought up the proceedings of the county court and showed by them that none of the defendants had in fact ever recognized the existence of any particular claim against the estate. Under the circumstances, we should naturally expect that the defendants would promptly rebut this prima facie case made by the plaintiffs. But the defendant Shipman, the only one who ever pretended-to have any claim against the estate, does not even answer. The defendant Davis denies all the allegations of fraud so far as he is concerned. The defendant Herndon, though answering at large on the law of the case, merely states, upon the facts, that the property was sold by the administrator, Davis, and that he had bought it in good faith and for a fair price; but he does not pretend that he had ever paid for it, or that he ever had any intention to do so. The defendants do not allege in their pleadings, or attempt to show upon the trial, that there were any real claims against the estate. In fact, the whole proceeding in the probate court has the [350] appearance of a private speculation at the expense of the estate, and the guiding hand of the defendant Herndon is visible throughout. [Opinion approved January 18, 1883.] The facts established in this case resemble very much the facts alleged in the case of Finch v. Edmonson, 9 Tex., 504; and in the case of Alexander v. Maverick, 18 Tex., 194, Justice Wheeler says that in Finch v. Edmonson the sale was declared void on account of fraud. So, we think, should the sale be in the present case. The judgment should be affirmed. Aeeibmed.