Farris v. Gilbert

50 Tex. 350

• Court: Texas Supreme Court
• Decided: July 1, 1878
• Status: Published

Opinion

Moore, Associate Justice.

The objection to the reading of the administrator’s report of the sale of six hundred and forty acres of the certificate issued to the heirs of Joseph Farris, deceased, under which the land in controversy was surveyed and patented, was properly overruled. The only objection taken to it was that the order of the court authorizes the sale of land, and not a certificate for land. Where it is necessary to do so, we may, unquestionably, look to the application for the proper interpretation and understanding of the order made by the court upon such application. If we do so in this ease, we find that the administrator asked for an order to sell the certificate, or so much of it as might be necessary to enable him to pay the claims against the estate of the intestate, alleging in his application that the estate owned no other property, of any character or description whatever, except said certificate. The court indicates its action upon this application by an order in these words :

“ This day came John Morton, administrator of the estate of Joseph Farris, deceased, and filed his report upon said estate, together with a petition for a sale of so much of the lands belonging to said estate as shall be sufficient to pay the debts against said estate, as prayed for in said administrator’s petition. Therefore it is ordered by the court that said administrator have leave to sell the same.”

Row, looking at and considering the order of the court in connection with the report and application upon which it was made, we think there can be no hesitancy in saying that the court intended to, and did in fact, authorize a sale as applied for by the administrator; that, whether correctly or not, the court, or clerk by whom the entry was made, supposed the certificate entitling the estate to land might, in a broad and liberal sense, be regarded and spoken of “ as the lands belonging to the estate.” But, be this as it may, it is clear from the order that it was the property referred to by the administrator as belonging to the estate, and not something that it did not own, that leave was given the administrator to sell. If there was a defect in the order of sale, if the sale was ratified and approved by the court,—and to this no objection seems to have been made,—the title of the purchaser cannot he brought in question on this account in a collateral proceeding. (Williams v. Childress, 25 Miss., 78; Freeman on Void Judgment Sales, sec. 11.)

The court did not err in admitting in evidence the deed from the administrator of Farris’ estate to W. T. Montgomery for the interest in or portion of the certificate purchased by him. The legality of the sale and validity of the purchaser’s title were not dependent upon the accuracy of the recitations of the date and number of the certificate given in the deed for the description and identity of the certificate sold and conveyed to him by the administrator. The subject of sale was one-half of the certificate issued to the heirs of Joseph Farris, deceased, by the board of land commissioners of Eed Eiver county. A title to a certificate certainly passes by a deed otherwise identifying it, though neither its number nor date is mentioned. Although the deed may in these respects improperly describe the subject of the sale, if from the whole instrument the certificate intended to he conveyed can be clearly and certainly identified, it is all that is required. Unless the deed was void, it was certainly admissible in evidence to prove title in the grantee.

When one person owns the entire certificate he may have twro separate surveys made upon it. If the owner sells onehálf of a certificate before the location of any part of it he must be held to have authorized the location by the purchaser of his interest in a single survey. It would be unreasonable to hold the purchaser bound to incur the expense and trouble of locating and procuring patent upon the entire certificate to make available his portion of it. Eor would it •be just or proper to say that he could bind the owner of the other part of the certificate by a location which might be valuable to him, hut worthless to any one else.

The improvements made upon the land by appellants appear, from the statement of facts, to be large and valuable. But we cannot say that the court below erred in not allowing them compensation for them. Isham Farris, the original defendant and father of appellants, seems to have been fully informed of the nature and character of appellee’s title before he went upon the land. He did not impeach or question appellee’s title upon the ground of objections urged against it by appellants. These objections seem to be altogether an after-thought.

The judgment is affirmed.

Affirmed.