Loller v. Frost

38 Tex. 208

• Court: Texas Supreme Court
• Decided: July 1, 1873
• Status: Published

Opinion

Walker, J.

There are several questions raised upon this record, upon some of which there is a difference of opinion between the members of the court; but upon the most material questions we are all agreed.

The appellant brought this suit as the surviving executor of Blunt, to enforce a vendor’s lien in favor of Blunt’s estate.

During the progress of the cause it is changed into an action to try title, and there is a judgment in favor of Steadham, quieting his title and giving him the land unincumbered by a vendor’s lien; and this is done without making the heirs of Blunt parties.

In Barrett v. Barrett’s Administrator, this question is decided, and the court say that the title to land must not be adjudicated, where it is held by an intestate, without making his heirs parties.

The administrator may be sued as a trespasser ; he may sue to recover the land of his intestate ; but if he is not in possession, he cannot be sued as amere fiduciary.

By Section 112 of the law governing the descent of estates and the administration thereof, the lands of an intestate, on his demise, vest in the heir (as at common law), subject only to the rights of creditors.

This case must be reversed and remanded.

Reversed and remanded.