Stark v. Osborn

221 F. 557, 137 C.C.A. 259, 1915 U.S. App. LEXIS 1355

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 11, 1915
• Docket: No. 2690
• Status: Published

Opinion

PARDEE, Circuit Judge

(after stating the facts as above). The ■defendants ¹ have assigned numerous errors to the rulings of the court, but, in the disposition of the case, it is deemed necessary to consider •only the two following questions:

1. Was the deed of Canfield, administrator of the estate of John M. Henrie, to R. B. Russell, admissible in evidence?

2. Upon the trial, the court held that the deed executed by J. M. Henrie—who will be designated as the Louisiana Henrie, to distinguish him from the San Augustine John M. Henrie—to Josiah Bell was void on its face, and thereby deprived the defendants of the right to rely upon the deed in support of their defense of the five-year statute of limitations. Was such ruling correct?

[1] As to the first question: The recitations of the administrator’s deed disclosed that the sale of the land in controversy was made at the courthouse in San Augustine county; and the court held that, since the land was situated in Jefferson (now Orange) county, the sale, in the absence of an order of the probate court otherwise directing, could only lawfully be made in the county last named, to- wit, the county of Jefferson. In construing the Acts of the Republic of Texas of January 21, 1841, February 4, 1841, and January 27, 1842, the court in its charge observed:

“The statutes I have read fail to state in any positive way that the sale shall be made in the county where the lands are located; but the Supremo Court of the state, in construing the various statutes, have read into them their understanding of them, and it has become the law since then that valid sales of land, unless directed to be made otherwise, whether made by an administrator or under execution, shall be made in the county where the land is located. It is recited in the administrator’s deed, offered in evidence, that the sale was made in San Augustine county, while the land was located in Orange county. The court, therefore, informs the jury that the administrator’s deed did not divest the title out of the estate of John M. Henrie,” etc.

Entertaining that view of 'the law, the court held that the administrator’s deed was inadmissible in evidence, and thus in effect withdrew from the jury all consideration of the probate proceedings, upon which the defendants partly relied to defeat the plaintiff’s cause of action. It is apparent that, if the administrator’s deed was effectual to vest in the vendors of the defendants the title of the John M. Henrie estate to the lands in controversy, the plaintiff was without right to recover. As we have shown, the deed was excluded on the ground that the sale, in the absence of an order of court otherwise directing, should have been made in Jefferson county, for the reason that the land was there located. In its charge to the jury the court did not refer specifically to any decisions of the courts of. Texas sustaining the ruling; nor have counsel for the plaintiff called to our attention any case which invalidated an administrator’s sale of land, made at the courthouse door of the county in which the administration proceeding was pending, or in the county where the sale took place, solely because it was not made in the county where the land was situated. It is an express direction of the act of 1842 that:

“All sales of land * * * shall be made at the courthouse door of the county in which the sales take place.”

Arid by the act of January 21, 1841, it is provided:

“That real estate shall be sold at the courthouse of the respective counties, ■unless an order of court be had to .sell at some other place.”

These Acts of the Republic were under discussion by the court in Peters v. Catón, 6 Tex. 554. In that case the sale was made at De Kalb, a place other than the county seat, and the court, in holding the sale void, stated the question at page 557 in the following language:

“The order of the court gave no specific directions as to the place of the sale; and the administratrix had no authority, by virtue of the decree, to expose the property to sale at any other than the place and the time fixed by law; and the question is whether, for the failure to comply with the requisites of the law in the particulars specified, the sale is void and conferred no title.”

This decision was rendered in 1851, only a few years after the passage of the acts construed by the court, and it appeared that the sale was not made at the courthouse of any county, nor was there an order of court directing it to be made elsewhere. While the court held the sale in the circumstances void, it was further observed by the Chief Justice at page 559:

“That an executor or administrator, in making sales of property, must comply in all essential particulars with the statutory provisions regulating the subject-matter, is well settled. Otherwise, those whose interests are affected, will not be concluded by the sale (7 Mass. 488), unless from a long acquiescence a compliance with the requisites of the law may be inferred.”

In addition to Peters v. Caton, counsel for the plaintiff rely, among others, upon Howard v. North, 5 Tex. 310, 51 Am. Dec. 769, Alred v. Montague, 26 Tex. 735, 84 Am. Dec. 603, Casseady v. Norris, 49 Tex. 613, and Sinclair v. Stanley, 64 Tex. 72, which were sales made by sheriffs and United States marshals in counties other than those in which the lands were located. In those and similar cases the sales were held void, and doubtless quite properly so; but they are scarcely pertinent to the present inquir)c The principal question which confronts us in the present case is whether, after the lapse of nearly 70 years, the court will indulge presumptions to sustain the validity of the sale made by the administrator.

' Before adverting to the authorities, a résumé of the salient points of the testimony, as disclosed by the record, will prove useful.

John M. Henrie died in 1839. After his death applications to administer upon his estate were made by his surviving wife and by James Tabor. The order appointing Mrs. Henrie administratrix was subsequently canceled. On January 14, 1844, A. W. Canfield of San Augustine county, filed an application in the probate court, reciting the death of James Tabor, and applying for the. appointment as administrator de bonis non of the Henrie estate, and an order was duly entered appointing Canfield administrator. After taking the usual oath, letters of administration were duly issued to Canfield. On January 23, 1844, Canfield, as administrator, applied to the court for authority to sell land belonging to the estate; and on June 24, 1844, an order was duly entered by the court authorizing the sale. Canfield, as administrator, sold the land in controversy on April 7, 1846, and executed a deed to Robert B. Russell to the same for a consideration of $368. The acknowledgment of the deed from Canfield to Russell was taken before the chief justice of San Augustine county on the day of the sale. On April 8th, the day following the sale, Canfield filed his report in the probate court of the sale made by him to Russell. On February 30, 1847, Mrs. Priscilla A. Duffield, former wife of John M. Henrie, applied to the probate court of San Augustine county for a widow’s allowance out of the estate, and her application was allowed therefor. There is nothing in the record to show that Mrs. Duffield ever obtained from the estate the allowance applied for. On January 27, 1847, the following order was entered in the minutes of the probate court of San Augustine county:

“The Estate of John M. Henrie.

“It is considered by the court that the report this day made by A. W. Can-field of his administration of said estate bo recorded.”

It is further shown by the record that on May 2, 1846, Russell conveyed the land to Canfield for a recited consideration of $1,000, and on June 5, 1846, Canfield conveyed to Daniel McLeod for $2,750. The present suit was filed October 15, 1913, and prior to its institution McLeod's heirs brought suit against the defendants to recover the land. Pending that litigation, on January 27, 1913, the heirs executed, by way of compromise, a deed to the defendants, by which the latter acquired such title as passed by the deed from Canfield, administrator, to Russell. It is further shown by the record that no open claim to the land has been made by Mrs. Duffield or her heirs from 1847 until just before the present suit was filed in 1913, covering a period of over 60 years, nor have any taxes been paid on the land by the plaintiff either before or after her assertion of claim.

What rule should be applied to the foregoing facts? The courts of Texas supply a conclusive answer. However, before proceeding to the authorities, and in this connection, it may be said that the sale made by Canfield to Russell was conceded to be in all respects legally sufficient, except that counsel for the plaintiff contended it was invalid, because not made in Jefferson county where the land was situated. This contention necessarily presupposes the nonexistence of an order by the probate court to make it in San Augustine county. And, narrowing the question, if there was an order of court authorizing the sale in the last-named county, or, if such an order may be presumed in view of the long lapse of time and other facts and circumstances appearing of record, it would naturally follow that the sale was valid and vested the title of the Henrie estate in Russell, the purchaser.

Let us now refer to the decisions of the Texas courts. In Baker v. Coe, 20 Tex. at page 435, the court said:

“The question upon this appeal is whether the curator’s sale and deed, of the 15th o/ November, 1834, was rightly held by the court valid and effectual to pass and vest title in the purchaser. And we are of opinion that it was. It was executed before the judge, mid it therefore evidences Ms authorization and approval oí the sale. It is to be deemed in the nature, in so far, of a judicial act, and affords prima facie evidence, at least, of the truth of the facts it recites. It affords all the proof that ought, at this day, to be required of the legality of the sale.”

And at page 437 the court used the following language:

“The absence of the order of sale in this case, as was said by the same court in a later case, ‘when applied to these ancient proceedings, raises but a remote presumption, which we hold to be subordinate to the violent legal presumption that the judge before whom the proceedings were had did his duty.’ 3 Ann. 147. We have heretofore had occasion to notice with what indulgence the courts of other states have regarded the proceedings of their courts of probate, when it was proposed to annul titles fairly acquired under' them, because their records did not show a compliance with all the requirements of the law in respect to the disposition of the estates of deceased persons. Burdett v. Silsbee and Dancy v. Stricklinge, 15 Tex. 557 [65 Am. Dee. 179]; Soye’s Heirs v. Maverick, 18 Tex. 100. Presumptions must be indulged in favor of those proceedings, especially when they are ancient, and titles have been acquired and transmitted under them, or it would indeed be true that time, instead of healing, as it should, the ^defects of these titles, would gradually undermine, and eventually destroy them. The judgment is affirmed.”

It was said by the court in Neill v. Cody, 26 Tex. 290;

“A confirmation of the sale, or something from which a confirmation might be inferred, or, at least, something done by the purchaser giving him the right to have the sale confirmed, must have been shown to enable him to claim title under it.”

See, also, Moody v. Butler, 63 Tex, at page 212.

In Robertson v. Johnson, 57 Tex. 66, it was said by the court;

“To constitute a valid sale of land by a guardian, so as to invest title in the purchaser, it does not admit of doubt that the court must have in some way or other recognized the sale as fairly made and at a reasonable price. A formal order of court, expressly confirming the sale and directing title to be made, is not essential. But if such acts are shown upon the part of the court as would satisfy the jury that the court recognized and acquiesced in it as a completed sale, when the purchase money had been paid and the deed executed, they might infer a confirmation by the court. Under the instruction given, the jury might well have drawn the conclusion that the burden was upon the appellants to satisfy them in some way that a formal order of confirmation had been made by the court. While a confirmation is essential to the validity of such sales, owing to the loóse and irregular manner in which such business has heretofore been conducted in our probate courts, in the very nature of things considerable indulgence in presumptions must be allowed in support of the proceedings of these courts.”

In Cruse v. O’Gwin, 48 Tex. Civ. App. 52, 106 S. W. at page 759, the Court of Civil Appeals, while holding in that case that there was no confirmation of the sale, and nothing from which a confirmation could be inferred, and nothing done by the purchaser giving him the right to have the sale confirmed, used this language:

“Even though there was no entry in the record books of the probate court tending to show that an order of sale was issued to the permanent administrator, or tending to show an approval of the sale made by him, still, if there was anything written on any paper filed in the case in the probate court that directly or indirectly indicated approval of the sale by the probate, court, we would sustain its validity under the authority of decisions of the Supreme Court. Neill v. Cody, 26 Tex. 286; Moody v. Butler, 63 Tex. 210.”'

And in Pendleton v. Shaw, 18 Tex. Civ. App. 456, 44 S. W. at page 1010, it was said by the Court of Civil Appeals:

“If any confirmations of sale were required at the date of the sales, the evidence shows compliance in approving the account of the administrator showing the sale. Ferguson v. Templeton (Tex. Civ. App.) 32 S. W. 148-151; Bartlett v. Cocke, 15 Tex. 471. It is sufficient confirmation if the court recognized sales. Robertson v. Johnson, 57 Tex. 66; Moody v. Butler, 63 Tex. 212; Neill v. Cody, 26 Tex. 289. All reasonable presumptions will be indulged, in favor of these ancient deeds, that everything necessary to be done to perfect the sale was properly done, if nothing appears to impeach its fairness. White v. Jones, 67 Tex. 638-640, 4 S. W. 161, and authorities cited; Bartlett v. Cocke, supra.”

In Turner v. Pope, 137 S. W. at page 423, the court held as follows ;

“At the time this sale was made, the law governing administrator’s sales in the republic of Texas did not require such sales to be confirmed by the probate court, there being no statute requiring such confirmation until 1846. Harris v. Brower, 3 Tex. Civ. App. 649, 22 S. W. 758; Williams v. Cessna, 43 Tex. Civ. App. 315, 95 S. W. 1106. If the law was otherwise, we think the record in this case shows a sufficient order of confirmation by the court ordering the sale. In the absence of any statute requiring such order to be made in open court, and entered in the minutes of the court, any memorandum of the probate judge, made by him officially, which shows that he approved the sale made by the administrator should be held sufficient. The record shows that the judge of the court that ordered the sale took the acknowledgment of the administrator to the deed conveying the property to the purchaser at such sale, and the certificate of acknowledgment, made and signed by him officially, after proper recitation of the acknowledgment of the deed by the administrator, contains the following: ‘It is therefore decreed that the foregoing deed be according to law.’ Such an order was no necessary part of the certificate of acknowledgment, and should not be presumed to have been made by the judge in his capacity of an ex officio notary public, but in his judicial capacity, and was intended as a judicial approval and confirmation of the sale.”

It was said by Judge Pleasants, speaking for the Court of Appeals in Ferguson v. Templeton, 32 S. W. at page 151:

“We think the order, taken with the application referred to in the order, is sufficiently definite to validate the act of the administrator in making the sale; and, while there is no formal order of the court confirming the sale, the approval of the final account of the administrator, and his discharge and that of his sureties, is, in our judgment, a substantial compliance with the law requiring an order of confirmation.”

In Perry v. Blakey, 5 Tex. Civ. App. 336, 23 S. W. at page 807, the following language was employed by the court:

“At the time of the trial the deed in question was 41 years old. It had stood all these years minssailcd by the parties interested in the estate. The administration under which it was made was shown to have been carelessly carried on, and it is not likely at this late date that full proof can be made of the probate proceedings. It is the policy of the law to uphold the proceedings of our probate courts. They are courts of record of general jurisdiction in all matters relating to administration of estates of deceased persons, and its judgments in such administration of estates, intrusted to its control by law, are to be regarded, in collateral actions attacking their validity, as entitled to the same presumptions as the judgments of any other court of record of general jurisdiction. Guilford v. Love, 49 Tex. 719.”

See, also, Dancy v. Stricklinge, 15 Tex. 557, 65 Am. Dec. 179.

Authorities upon the question might be multiplied, but it is useless to refer to others.

In the case before us the administrator reported the sale to the court the day after it was made, and the chief justice of the county (presiding judge of the probate court) took the acknowledgment to the administrator’s deed. Without more, after the lapse of more than 60 years, the court may readily indulge two presumptions: (1) A ratification and confirmation of the sale; and (2) an order duly made by the probate court authorizing the administrator to sell the land in San Augustine county. Upon reason, and in view of the foregoing authorities, we entertain nó doubt that the sale made by the administrator to Russell was valid, and that it vested in the latter the title of the Henrie estate to the land in question.

[2] As to the second question: Did the court err in holding that the deed from the Louisiana J. M. Henrie to Josiah Bell was void as a matter of law. We deem it unnecessary to enter upon an elaborate discussion of this phase of the case. Unless this deed was a forgery, the defendants could have availed themselves of it, with the other incidents which the law prescribes, as a defense under the five-year statute of limitations. Hunter v. Nichols, 55 Tex. at page 230, and authorities cited. Apart from the fact that the Louisiana Henrie executed the deed to Josiah Bell, the record is silent as to his identity. Who he was, whence he came, or whither he went, we are not informed. .It may be that he soldtland to which he was not entitled, although having the same name as the John M. Henrie of San Augustine, Tex. But, be that as it may, we are of opinion that the issue of forgery vel non should have been, under appropriate instructions, submitted to the jury, particularly since a part of the land in controversy has been for nearly 50 years in possession of some of the defendants, who, during that long period, have claimed title under the Louisiana Henrie deed.

It follows from what has been said that the ruling of the court in reference to the two deeds mentioned was erroneous. The suit Was brought by the plaintiff against sundry defendants to recover 1,107 acres of land. Following the verdict, judgment was rendered in favor of all defendants except W. H. Stark, B. D. Harris, and C. E. Slade. These three defendants asserted ownership of 397 acres off the north side of the grant, and as to them judgment went in favor of the plaintiff. The present contest is confined solely to the plaintiff, on the one hand, and to the three named defendants, on the other; and that view of the controversy seems to be conceded by counsel. As the case stands, the sole issue for future determination is as to the ownership of the 397 acres. The judgment should therefore be permitted to stand as to all the defendants, except W. H. Stark, B D. Harris, and C. E. Slade, and as to them it should be reversed, and the cause remanded for a new trial.

■Ordered accordingly.

1 Note.—Por convenience the plaintiffs in error, defendants below, will be ■ referred to as defendants, and the defendant in error, plaintiff below, as plain-stiff.