Quinan, J. Com. App.—
That the sale and conveyance of the league of land in controversy by John Stewart and Bartlett Sims to Chrisman, being made in violation of law before the issuance of the final title to Stewart, was [49]*49a nullity, is well settled by repeated decisions of this court. Hunt’s Heirs v. Robinson, 1 Tex., 748; Robins’ Heirs v. Robins, 3 Tex., 396; Spillars v. Clapp; Hunt v. Turner, 9 Tex., 385; Burleson v. Burleson, 11 Tex., 2; Atkinson v. Bell, 18 Tex., 479; Babb v. Carrol, 21 Tex., 768; Desmuke v. Griffin, 10 Tex.; Williams v. Chandler, 25 Tex. 4.
In Atkinson v. Bell the grantee of the land, Babbitt, sold to Bella portion of his three-fourths league, acknowledging payment of the price. The deed was dated March 15, 1835. The final title from the government to Babbitt was issued October, 1835. Chief Justice Hemphill said: “We have held in various cases in effect, that prior to the law of March 26, 1833, sales made by colonists or settlers of their headrights before the lapse of six years from the date of the title were void; and we have also held, that after the law of March 26, 1834, up to the date of the constitution of the republic, sales of land by settlers, and agreements for the sale of their land, made before the final titles were issued to them, were nullities. There may be equities such as taking possession, etc., arising subsequent to the sale, which would sustain the claim of the purchaser against the title of the vendor. . . . But under the facts in evidence the title of the appellee is not such as will maintain the action against the defendant. The title of Babbitt to Thomas Bell is void.”
In Williams v. Chandler, 25 Tex., 10, which was a suit brought upon a contract of sale in 1831, when the law prohibited the sale, Chief Justice Wheeler said: “It is beyond question that the contract of sale of December 19, 1831, was in contravention of law and void under the decisions of this court, which must be deemed to have settled the law applicable to contracts like the present. . . .
The plaintiff is not shown ever to have been in possession of the land, or ever to have exercised any act of ownership respecting it. There is no case in which the right [50]*50of the purchaser under a contract like the present has been upheld, unless supported by possession and strong equities, independently of the contract.”
In the present case, the plaintiffs allege no facts upon which to base an equitable title to the land sued for. They have never been in possession of the land, nor have those under whom they claim, or exercised acts of ownership over it. There is no proof of a subsequent ratification by Stewart of the illegal sale or acquiescence in their title. Their deeds were not put on record until more than a lifetime had elapsed from their execution, and long after the land had passed into the possession of the defendants. It has been séen that in every case in which relief has been given to purchasers under sales like the present, it has been given, not because of the purchase or the payment of the price, but that there has been long possession of the land held under it; long acquiescence in the sale by the parties or their heirs; large improvements made; and the circumstances such that to disturb the possession of the vendees would be to vindicate an ancient violation of the law, by the infliction for the benefit of its violators of a present unconscionable injury.
The plaintiffs insist that the payment of the price by Chrisman to Stewart and Sims raises an equity entitling them to an enforcement of the contract, as there has been no offer to return it,—that Stewart and those who claim under him in this suit cannot retain both the price and the land. How the sale was a void sale. The refusal to refund the price could not validate it. Manifestly that would be a virtual annulment of the law which prohibited such sales.
Ílt is urged that although Stewart had no title to the land when he sold, and could make none, yet as he after-wards acquired title, this after-acquired title inured to the benefit of his vendees, who took the title by estoppel. This is certainly the general rule. It was insisted upon [51]*51in Atkinson v. Bell, but Chief Justice Hemphill replied, “ The rule that where a vendor has not title, and sells, any title afterwards procured by him will inure to the benefit of the purchaser, does not apply in cases where such sale was prohibited by law. Such favor shown to a purchaser at a prohibited sale would thwart and defeat the policy of the government. ”
This sale, then, by Stewart and Sims to Chrisman being the foundation of the appellants’ title, being invalid as prohibited by law, and no such equities being alleged or proven by them as would support a title under or by consequence of it, it follows that the verdict and judgment in their favor for one-half the league of land cannot stand. The judgment is erroneous and should be reversed.
It may be proper, as we cannot anticipate what proof may be made upon another trial, that we should briefly indicate our views of the questions which have been raised on this record and may again arise.
1. The plea of non est factum filed by Sexton was filed too late. The only effect of that, however, was to throw upon defendants the burden of proving the conveyance by Faircloth and Hines to be as they alleged, a forgery.
2. That by the terms of Richardson’s will his executors had power to settle all claims against his estate and make partition of it without the necessity of any action on the part of the probate court, except, indeed, the probate of the will and grant of letters testamentary, and reception of the inventory, cannot be doubted. The statute authorized him to withdraw the administration of his estate from the control of the probate court. Having qualified as executors and returned the inventory, the probate court had no further jurisdiction over them or the estate, so long as they continued to discharge the trust. It could only acquire jurisdiction in the contingencies and by the means which the statutes prescribe. Hence it follows [52]*52that the partition of Richardson’s estate made by them, or conveyances executed in discharge of any liabilities of the estate, needed no approval by the probate court, and acquired no aid or validity therefrom. Its proceedings were outside of its jurisdiction, and its records affected no one with notice of them. Pasch. Dig., art. 000; Runnels v. Runnels, 27 Tex., 521; McDonough v. Cross, 40 Tex., 251.
3. That Johns purchased the land claimed by him from Mrs. Sexton as heir of Richardson does not of itself preclude him from availing himself of all the protection which our registration laws accord to innocent purchasers. Whether he was such in fact must be ascertained from a consideration of all the circumstances of the transaction. His deed purports to be a conveyance of the land, and not merely of the right or claim of Mrs. Sexton to it. He paid full value for it, purchased it from the apparent owner, after partition of Richardson’s estate, and in fact, as it appears, without actual knowledge of any adverse claim. The law vested the legal title of the estate of the father in his heirs upon his death.
The observations of Judge Green in McCulloch v.
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Quinan, J. Com. App.—
That the sale and conveyance of the league of land in controversy by John Stewart and Bartlett Sims to Chrisman, being made in violation of law before the issuance of the final title to Stewart, was [49]*49a nullity, is well settled by repeated decisions of this court. Hunt’s Heirs v. Robinson, 1 Tex., 748; Robins’ Heirs v. Robins, 3 Tex., 396; Spillars v. Clapp; Hunt v. Turner, 9 Tex., 385; Burleson v. Burleson, 11 Tex., 2; Atkinson v. Bell, 18 Tex., 479; Babb v. Carrol, 21 Tex., 768; Desmuke v. Griffin, 10 Tex.; Williams v. Chandler, 25 Tex. 4.
In Atkinson v. Bell the grantee of the land, Babbitt, sold to Bella portion of his three-fourths league, acknowledging payment of the price. The deed was dated March 15, 1835. The final title from the government to Babbitt was issued October, 1835. Chief Justice Hemphill said: “We have held in various cases in effect, that prior to the law of March 26, 1833, sales made by colonists or settlers of their headrights before the lapse of six years from the date of the title were void; and we have also held, that after the law of March 26, 1834, up to the date of the constitution of the republic, sales of land by settlers, and agreements for the sale of their land, made before the final titles were issued to them, were nullities. There may be equities such as taking possession, etc., arising subsequent to the sale, which would sustain the claim of the purchaser against the title of the vendor. . . . But under the facts in evidence the title of the appellee is not such as will maintain the action against the defendant. The title of Babbitt to Thomas Bell is void.”
In Williams v. Chandler, 25 Tex., 10, which was a suit brought upon a contract of sale in 1831, when the law prohibited the sale, Chief Justice Wheeler said: “It is beyond question that the contract of sale of December 19, 1831, was in contravention of law and void under the decisions of this court, which must be deemed to have settled the law applicable to contracts like the present. . . .
The plaintiff is not shown ever to have been in possession of the land, or ever to have exercised any act of ownership respecting it. There is no case in which the right [50]*50of the purchaser under a contract like the present has been upheld, unless supported by possession and strong equities, independently of the contract.”
In the present case, the plaintiffs allege no facts upon which to base an equitable title to the land sued for. They have never been in possession of the land, nor have those under whom they claim, or exercised acts of ownership over it. There is no proof of a subsequent ratification by Stewart of the illegal sale or acquiescence in their title. Their deeds were not put on record until more than a lifetime had elapsed from their execution, and long after the land had passed into the possession of the defendants. It has been séen that in every case in which relief has been given to purchasers under sales like the present, it has been given, not because of the purchase or the payment of the price, but that there has been long possession of the land held under it; long acquiescence in the sale by the parties or their heirs; large improvements made; and the circumstances such that to disturb the possession of the vendees would be to vindicate an ancient violation of the law, by the infliction for the benefit of its violators of a present unconscionable injury.
The plaintiffs insist that the payment of the price by Chrisman to Stewart and Sims raises an equity entitling them to an enforcement of the contract, as there has been no offer to return it,—that Stewart and those who claim under him in this suit cannot retain both the price and the land. How the sale was a void sale. The refusal to refund the price could not validate it. Manifestly that would be a virtual annulment of the law which prohibited such sales.
Ílt is urged that although Stewart had no title to the land when he sold, and could make none, yet as he after-wards acquired title, this after-acquired title inured to the benefit of his vendees, who took the title by estoppel. This is certainly the general rule. It was insisted upon [51]*51in Atkinson v. Bell, but Chief Justice Hemphill replied, “ The rule that where a vendor has not title, and sells, any title afterwards procured by him will inure to the benefit of the purchaser, does not apply in cases where such sale was prohibited by law. Such favor shown to a purchaser at a prohibited sale would thwart and defeat the policy of the government. ”
This sale, then, by Stewart and Sims to Chrisman being the foundation of the appellants’ title, being invalid as prohibited by law, and no such equities being alleged or proven by them as would support a title under or by consequence of it, it follows that the verdict and judgment in their favor for one-half the league of land cannot stand. The judgment is erroneous and should be reversed.
It may be proper, as we cannot anticipate what proof may be made upon another trial, that we should briefly indicate our views of the questions which have been raised on this record and may again arise.
1. The plea of non est factum filed by Sexton was filed too late. The only effect of that, however, was to throw upon defendants the burden of proving the conveyance by Faircloth and Hines to be as they alleged, a forgery.
2. That by the terms of Richardson’s will his executors had power to settle all claims against his estate and make partition of it without the necessity of any action on the part of the probate court, except, indeed, the probate of the will and grant of letters testamentary, and reception of the inventory, cannot be doubted. The statute authorized him to withdraw the administration of his estate from the control of the probate court. Having qualified as executors and returned the inventory, the probate court had no further jurisdiction over them or the estate, so long as they continued to discharge the trust. It could only acquire jurisdiction in the contingencies and by the means which the statutes prescribe. Hence it follows [52]*52that the partition of Richardson’s estate made by them, or conveyances executed in discharge of any liabilities of the estate, needed no approval by the probate court, and acquired no aid or validity therefrom. Its proceedings were outside of its jurisdiction, and its records affected no one with notice of them. Pasch. Dig., art. 000; Runnels v. Runnels, 27 Tex., 521; McDonough v. Cross, 40 Tex., 251.
3. That Johns purchased the land claimed by him from Mrs. Sexton as heir of Richardson does not of itself preclude him from availing himself of all the protection which our registration laws accord to innocent purchasers. Whether he was such in fact must be ascertained from a consideration of all the circumstances of the transaction. His deed purports to be a conveyance of the land, and not merely of the right or claim of Mrs. Sexton to it. He paid full value for it, purchased it from the apparent owner, after partition of Richardson’s estate, and in fact, as it appears, without actual knowledge of any adverse claim. The law vested the legal title of the estate of the father in his heirs upon his death.
The observations of Judge Green in McCulloch v. Eudaly, 3 Yerg., 348, in a similar case are applicable here, and we quote them as aptly expressing our views: “ The estate is thrown upon the heir with all the rights the ancestor enjoyed and subject to all the incumbrances he had created upon it. The registry acts are intended for the protection of the community from imposition and frauds. If a purchaser who is not in possession of the land may keep his deed in his pocket for ten years, concealed from the world, and then produce it and overreach all other deeds which in the mean time may have been made for the same land, no man would be safe in the purchase of an estate. This mischief would equally exist whether the ancestor or the heir continue the apparent legal owner of an estate which had been sold.”
We may add, that the withdrawal of conveyances by [53]*53heirs from the protection of the statutes of registration, so that one who purchased from them should not be considered an innocent purchaser, would tend very greatly to depreciate the salable value of the estate they inherited. And such a result would be at variance with the spirit and policy of our laws. Taylor v. Harrison, 47 Tex., 454; Harrison v. Baring, 44 Tex., 255; Love v. Berry, 22 Tex., 378; Graham v. Hawkins, 38 Tex., 634; Vaughan v. Greer, 38 Tex., 530.
4. The minority of Stewart at the date of the alleged conveyance to Ohrisman presents no material question. If otherwise valid, his disaffirmance after the great length of time which elapsed after his arrival of age until he conveyed to Hancock, under the circumstances of the case would not invalidate it. On the other hand, if it was, as we have seen, a void deed, it could derive no validity from his mere silence or acquiescence.
o. The deed from Stewart to Hancock was not a mere quit-claim deed. It purported to convey the land and not merely his right, title or claim to it. It contained a special warranty, it is true, but that warranty was against all the world except the government. It is not perceived why the defendants could not claim under it as innocent purchasers, if the other incidents to support that claim existed.
6. Whether the partition under which Mrs. Sexton acquired the land in controversy contained a sufficient description of the land to identify it, was a question of fact for the jury. It was sufficient if it could be rendered certain by the conveyances and the' inventory in the estate.
7. We have commented upon the questions presented by the briefs of counsel which may possibly be considered upon another trial. There were many points reserved to the ruling of the judge which are not insisted upon, and a discussion of which would not be profitable. We pretermit any expression of opinion as to the pleadings, for [54]*54they may be amended as upon the evidence so.voluminously set out in the transcript. Ho proof was offered to sustain the allegation of the plaintiffs that there was a mistake in the date of Stewart and Sims’ conveyance to Chrisman. The presumptions always indulged in favor of the acts of the officials in extending land titles would seem to leave no room to doubt that in fact the grant to. Stewart was issued on the day of its date. It may be that another grant had been partially expedited to John and James Stewart, as recited in the deed to Chrisman, which for good cause was recalled, and the grant in the present case issued to John Stewart subsequently.
[Opinion delivered November 28, 1881.]
We are of opinion the judgment should be reversed and the cause remanded.
Reversed and remanded.