Jemison v. Gaston

21 Tex. 266

• Court: Texas Supreme Court
• Decided: July 1, 1858
• Status: Published

Opinion

Wheeler, J.

It does not appear that there was no appraisement of the land in question prior to the sale. The deed recites the contrary, that there was such appraisement; and that is prima facie evidence of the fact. It was not necessary that it should appear by the records of the Probate Court; nor was it incumbent on the defendant to prove it. The Court had authority to order the sale elsewhere than at the Court House, (Hart. Dig. Art. 1057,) and the question is, whether the order conferred the authority in this instance ? We are of opinion that it did. The order was made “ upon the petition of the administrator,” for authority to sell “ at the late residence” of the deceased. The order must be considered in reference to the petition; it must be understood as granting the prayer of the petition. Disconnected from the petition, it would not confer the authority. (6 Tex. R. 554.) But it cannot be so considered. It was in answer to the petition, and must be so read and understood. When read in that connection, it must be understood as an order to sell at the residence of the deceased. The same point was ruled in the case of Neill v. Keese, upon a case not materially different from the present. (5 Tex. R. 23, 31.) That case is decisive of the present. The judgment is affirmed.

Judgment affirmed.