STAYTON, Chief Justice.
On May 7, 1831, David Clark obtained a grant of one league of land as a colonist, and on October 8, 1833, he by an instrument in writing conveyed one-fourth of that land to Benjamin McDaniel, and therein bound himself to give such further assurance of title as might be necessary so soon as the laws would permit him to do so. ■
At the time the grant was applied for David Clark was a married man, and appellees brought this action, as his heirs and as residuary devisees of his wife against appellants, who claim under McDaniel, to recover the land to which the conveyance made by Clark relates.
David Clark was killed early in the year 1837, and administration on his estate was had by his widow in the Probate Court for Washington County.
During the year 1837 application was made to the Probate Court for specific performance of the contract of October 8, 1833,-and it appears from the findings of the court that between December 31, 1838, and February 28, 1842, that court directed a conveyance to be made by the administratrix, and that in conformity with this order a deed was executed by her. These findings were upon evidence circumstantial in nature, it appearing that the records of the Probate Court for the period intervening the dates named had been lost or destroyed, and there being no direct evidence that a deed was executed by the administratrix.
The court below correctly held that the conveyance from Clark to McDaniel was prohibited by law, and further held that no equities were shown to defeat the plaintiff’s legal title, and therefore entered judgment in their favor.
It is now insisted the judgment should have been for the defendants on the findings that the Probate Court decreed specific performance, in pursuance of which a deed was made by the administratrix.
Under these findings a judgment should have been entered for the defendants if the Probate Court had jurisdiction to decree specific performance of the contract; for in such case no inquiry in this action could now be made as to the propriety of such a decree.
Had that court jurisdiction to make such a decree at the time it is found to have been made! The Constitution of the Republic simply provided that there should be a County Court in each county, but did not define their jurisdiction. Constitution, art. 4, sec. 10.
The Act of December 20,1836, conferred on County Courts power to probate wills, grant letters of administration, appoint guardians, and to examine and settle the accounts of executors, administrators, and guardians, and “full jurisdiction of all testamentary and other matters appertaining to a Probate Court within their respective counties.” Sayles’ Early Laws, art. 263.
The Act of February 5, 1840, more fully regulated the duties of the Probate Courts and prescribed their mode of procedure than did the former law, but neither of them expressly conferred the power to decree and enforce specific performance of contracts to convey land made by a person whose estate might be in course of administration. Sayles’ Early Laws, 736.
• The Act of February 2, 1844, seems to have been the first act that conferred such a power. Sayles’ Early Laws, 1341.
This power, however, seems to have been conferred on Probate Courts only in cases in which application was made by an executor, administrator, or guardian, when it was made to appear upon “satisfactory evidence that a compliance with the requirements of said bond, obligation, or contract would be beneficial to the interest of said estate.” The fourth and fifth sections of that act provide that actions brought by the holders of such obligations against a deceased person, or by the executors or administrators of the estate of a deceased person, should be brought in the District Courts.
These are believed to be all the laws in force during the period in which transpired the facts on which appellants base their right to recover on a decree directing specific performance of the contract between Clark and McDaniel, other than Decree Ho. 81, of January 22, 1836, which provided that all proceedings relative to successions and matters of probate should be regulated and governed agreeably to the principles and laws in similar cases in the State of Louisiana. Sayles’ Early Laws, 212.
It seems to be contended that the decree last referred to conferred such a power, and that it was exercised by the primary judges.
If it could be held that this decree Avas intended to confer on the courts exercising probate powers such jurisdiction as like courts exercised in Louisiana, and was not intended solely to regulate the procedure, and that it was in force at date the decree may have been made, then this would not benefit appellant’s case, for it is evident that such courts in Louisiana did not have power to enforce specific performance of contracts to convey land made by a deceased person. Rhodes v. Rhodes, 3 La., 308; O’Donogan v. Knox, 11 La., 388.
There are many cases In which lands were sold under judgments rendered hy judges of first instance even when a defendant was represented by a curator, but this was under the general jurisdiction of the courts over which these judges presided, and not under the powers exercised by them in probate proceedings; and we are unaware of any case in which it was held that primary judges in the exercise of such probate jurisdiction as was conferred upon them had power to decree specific performance of an agreement to convey land.
In Jones v. Huff, 36 Texas, 683, it was held that in 1837 Probate Courts had such a power, but the cases cited to support the opinion do not sustain it.
Bohanan v. Hans'was a case in which, in a suit pending before a primary judge to enforce specific performance of a contract to convey land made by a person then living, a curator was appointed to represent the absent defendant and on hearing to make a deed; and the proceedings were held to be lawful and not subject to collateral attack.
Box v. Lawrence was an action in the District Court, and there was no such question in it.
In Shannon v. Taylor the probate proceedings there referred to occurred in September, 1845, but the decree for specific performance had ■been rendered in a District Court in 1841.
The decree for specific performance referred to in Mills v. Alexander was rendered by a District Court in 1839.
In Thompson v. Duncan it was decided that an administrator might maintain an action to recover land belonging to the estate represented by him.
There was no such question involved in Manifee v. Hamilton, 32 Texas, 495.
Kegans v. Allcorn was an action for specific performance brought against an administratrix in a District .Court, in which- it was decided that the decree adopting the procedure of Louisiana in the settlement of successions had no application, because it “was not a proceeding relative to a succession within the terms and meaning of the ordinance.”
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STAYTON, Chief Justice.
On May 7, 1831, David Clark obtained a grant of one league of land as a colonist, and on October 8, 1833, he by an instrument in writing conveyed one-fourth of that land to Benjamin McDaniel, and therein bound himself to give such further assurance of title as might be necessary so soon as the laws would permit him to do so. ■
At the time the grant was applied for David Clark was a married man, and appellees brought this action, as his heirs and as residuary devisees of his wife against appellants, who claim under McDaniel, to recover the land to which the conveyance made by Clark relates.
David Clark was killed early in the year 1837, and administration on his estate was had by his widow in the Probate Court for Washington County.
During the year 1837 application was made to the Probate Court for specific performance of the contract of October 8, 1833,-and it appears from the findings of the court that between December 31, 1838, and February 28, 1842, that court directed a conveyance to be made by the administratrix, and that in conformity with this order a deed was executed by her. These findings were upon evidence circumstantial in nature, it appearing that the records of the Probate Court for the period intervening the dates named had been lost or destroyed, and there being no direct evidence that a deed was executed by the administratrix.
The court below correctly held that the conveyance from Clark to McDaniel was prohibited by law, and further held that no equities were shown to defeat the plaintiff’s legal title, and therefore entered judgment in their favor.
It is now insisted the judgment should have been for the defendants on the findings that the Probate Court decreed specific performance, in pursuance of which a deed was made by the administratrix.
Under these findings a judgment should have been entered for the defendants if the Probate Court had jurisdiction to decree specific performance of the contract; for in such case no inquiry in this action could now be made as to the propriety of such a decree.
Had that court jurisdiction to make such a decree at the time it is found to have been made! The Constitution of the Republic simply provided that there should be a County Court in each county, but did not define their jurisdiction. Constitution, art. 4, sec. 10.
The Act of December 20,1836, conferred on County Courts power to probate wills, grant letters of administration, appoint guardians, and to examine and settle the accounts of executors, administrators, and guardians, and “full jurisdiction of all testamentary and other matters appertaining to a Probate Court within their respective counties.” Sayles’ Early Laws, art. 263.
The Act of February 5, 1840, more fully regulated the duties of the Probate Courts and prescribed their mode of procedure than did the former law, but neither of them expressly conferred the power to decree and enforce specific performance of contracts to convey land made by a person whose estate might be in course of administration. Sayles’ Early Laws, 736.
• The Act of February 2, 1844, seems to have been the first act that conferred such a power. Sayles’ Early Laws, 1341.
This power, however, seems to have been conferred on Probate Courts only in cases in which application was made by an executor, administrator, or guardian, when it was made to appear upon “satisfactory evidence that a compliance with the requirements of said bond, obligation, or contract would be beneficial to the interest of said estate.” The fourth and fifth sections of that act provide that actions brought by the holders of such obligations against a deceased person, or by the executors or administrators of the estate of a deceased person, should be brought in the District Courts.
These are believed to be all the laws in force during the period in which transpired the facts on which appellants base their right to recover on a decree directing specific performance of the contract between Clark and McDaniel, other than Decree Ho. 81, of January 22, 1836, which provided that all proceedings relative to successions and matters of probate should be regulated and governed agreeably to the principles and laws in similar cases in the State of Louisiana. Sayles’ Early Laws, 212.
It seems to be contended that the decree last referred to conferred such a power, and that it was exercised by the primary judges.
If it could be held that this decree Avas intended to confer on the courts exercising probate powers such jurisdiction as like courts exercised in Louisiana, and was not intended solely to regulate the procedure, and that it was in force at date the decree may have been made, then this would not benefit appellant’s case, for it is evident that such courts in Louisiana did not have power to enforce specific performance of contracts to convey land made by a deceased person. Rhodes v. Rhodes, 3 La., 308; O’Donogan v. Knox, 11 La., 388.
There are many cases In which lands were sold under judgments rendered hy judges of first instance even when a defendant was represented by a curator, but this was under the general jurisdiction of the courts over which these judges presided, and not under the powers exercised by them in probate proceedings; and we are unaware of any case in which it was held that primary judges in the exercise of such probate jurisdiction as was conferred upon them had power to decree specific performance of an agreement to convey land.
In Jones v. Huff, 36 Texas, 683, it was held that in 1837 Probate Courts had such a power, but the cases cited to support the opinion do not sustain it.
Bohanan v. Hans'was a case in which, in a suit pending before a primary judge to enforce specific performance of a contract to convey land made by a person then living, a curator was appointed to represent the absent defendant and on hearing to make a deed; and the proceedings were held to be lawful and not subject to collateral attack.
Box v. Lawrence was an action in the District Court, and there was no such question in it.
In Shannon v. Taylor the probate proceedings there referred to occurred in September, 1845, but the decree for specific performance had ■been rendered in a District Court in 1841.
The decree for specific performance referred to in Mills v. Alexander was rendered by a District Court in 1839.
In Thompson v. Duncan it was decided that an administrator might maintain an action to recover land belonging to the estate represented by him.
There was no such question involved in Manifee v. Hamilton, 32 Texas, 495.
Kegans v. Allcorn was an action for specific performance brought against an administratrix in a District .Court, in which- it was decided that the decree adopting the procedure of Louisiana in the settlement of successions had no application, because it “was not a proceeding relative to a succession within the terms and meaning of the ordinance.”
* If a suit for specific performance of a contract to convey land is not a proceeding relative to a succession when brought in a District Court, it is not when sought to be enforced in some other court, for the court in which a matter is litigated can not give character to the proceeding. If the courts that exercised probate jurisdiction prior to the earlier acts before referred to had, under such general grants of probate powers, exercised the power to enforce specific performance of written contracts to convey land made by deceased persons, then a broader meaning might be given to the statutes referred to.than can be when no such power was recognized to exist under former laws.
Section 53 of the Act of March 20,1848, seems to have been the first law which permitted the holder of a contract to convey land to have
specific performance through - a decree of a Probate Court, and under that the remedy was not a satisfactory one, for it was open to re-examination, as was such a decree when obtained by an executor or administrator under the Act of February 2,1844. These acts both indicate the reluctance of the Legislature to confer such a power on the Probate Courts at all, and recognize the better adaptation of the District Courts to try such issues, which may be as persistently litigated as any other.
In Jones v. Taylor, 7 Texas, 244, and in Peters v. Phillips, 19 Texas, 70, it was said that the power in question conferred by the Act of March 20, 1848, was special and limited.
In Booth v. Todd, 8 Texas, 137, it was held that the general grant of probate powers would not confer on County Courts the power to decide litigated accounts between the representatives of parties, and it was said that there was perhaps “but one case in which litigation on a claim against the deceased is conducted before the Probate Court, and that is for the enforcement of an executory contract to convey title to lands.” The source of this power was not in the general grant of probate jurisdiction, but in the statutes which specifically gave it.
In Hooper v. Hall, 30 Texas, 154, the question of the power of a Probate Court, in 1842, to decree specific performance of a contract to convey lands was considered, and it was held that such a power did not then exist. Speaking of the act of February 5, 1840, it was said: “This law gave to the Probate Court authority to order the partition of lands held in common by the succession and the applicant for such partition; but the court had no jurisdiction in cases for specific performance of contracts, or to hear and determine upon the validity of lands or other important titles. It was not until the passage of this Act of February 2,1844 (Hart. Dig., art., 1070; Pasch. Dig., note 487, p. 315), that the court was invested with that power.”
There being no grant of such a power to Probate Courts until February 2, 1844, it follows that it did not exist at the time the court below found that such a decree was entered.
This court would presume that such a state of facts was shown as authorized such a decree as the court below found was rendered, if the jurisdiction of the court was shown, but in the absence of jurisdiction, whatsoever may have been the equities between the parties, the decree binds no person or thing.
The deed made by the administratrix in pursuance of the decree of the Probate Court can not be given the effect which might otherwise be given to it as the deed of the survivor of the comnmnityj and it is not now necessary to determine whether any effect may be given to it.
It has been held that although such contracts as that relied on in this case can not be enforced, equities may arise between the parties such as to preclude a. recovery by the maker of such a contract or his
heirs, and we are asked by appellants to render a judgment in their favor upon the assumption that the record shows such equities.
There is no statement of facts but only conclusions of the court, and we do not think it would be just to either party herein to enter a judgment on the record before us.
In the former disposition of the case it was directed that the judgment be reversed and the cause remanded, when if appellees desire to do so they may tender the purchase money with interest, without which, under the former rulings of this court, they can not recover. Hunt v. Turner, 9 Texas, 385; Mills v. Alexander, 21 Texas, 154; Ledyard v. Brown, 27 Texas, 405.
This we still deem proper in view of the pleadings and the manner in which the cause was tried and here presented, and when the case reaches the trial court both parties will be at liberty to pursue such course in the further conduct of the litigation as to them may seem proper and as may be lawful.
The judgment of the court below will be reversed and the cause remanded.
Reversed and remanded.
Delivered March 20, 1891.