SANTANA LIVE-STOCK & LAND CO. et al. v. PENDLETON et al., 81 F. 784

PARDEE, Circuit Judge, after stating the facts as above, delivered the opinion of the court. Creed T. Pendleton, in his lifetime, having acquired a right to the grant under the colonization laws of Mexico by immigrating to the state of Coahuila and Texas, and residing there with his family, the original certificate issued to the heirs of said Pendleton on the application of Shubal Marsh, administrator, was assets of said Pendleton’s estate, subject to administration by the proper probate court, and to be applied to the payment of said Pendleton’s debts. Soye v. Maverick, 18 Tex. 101; Allen v.

Clark’s Heirs, 21 Tex. 404; Marks v. Hill, 46 Tex. 346; Rogers v. Kennard, 54 Tex. 34; Hill v. Kerr, 78 Tex. 218, 14 S. W. 566; Lyne v. Sanford, 82 Tex. 59, 19 S. W. 847. The patent issued to the heirs of Creed T. Pendleton by the state of Texas on the 9th day of January, 1874, by virtue of the certificate above referred to, vested the legal title to the lands conveyed by the patent in the heirs or assigns of Creed T. Pendleton according to interest in the certificate, by virtue of the act of the legislature of the state of Texas passed December 24, 1851. See Rev. St. Tex. 1879, art. 3961.

As the location of the Creed T. Pendleton league and labor in Robertson county, Tex., at the time of the sales lay the administrator was invalid by reason of partial conflict with a prior 11-league grant, and as said certificate was afterwards floated in accordance with the laws of Texas, and relocated in Coleman county, on the lands in controversy, any discrepancies in the description of the land as shown in.the deed of the administrator to W. IT.

McFarland, and in the report of sale by the administrator to the probate court of Washington county, are and were immaterial, as the administrator’s deed at least conveyed the right to one-half of the certificate, and upon the relocation in Coleman county the legal title to one-half of the league as located vested in the purchaser of the one-half of the certificate. Simpson v. Chapman, 45 Tex. 560, 566; Renick v. Dawson, 55 Tex. 102, 107; Hines v. Thorn, 57 Tex. 98, 102; Hearne v. Gillett, 62 Tex. 23; Robertson v. Du Bose, 76 Tex. 1, 13 S. W. 300.

It is to be noticed that in the administrator’s deed to McFarland the certificate issued to the said Creed T. Pendleton was expressly conveyed. As to the title passed by an administrator’s deed, see Sypert v. McCowen’s Ex’rs, 28 Tex. 636, 640; Bennett v. Kiber, 76 Tex. 389, 13 S. W. 220; Burkett v. Scarborough, 59 Tex. 495; Lumpkin v. Adams, 74 Tex. 103, 11 S. W. 1070. The order of sale under which the administrator of Creed T.

Pendleton sold the remaining half league to pay the outstanding debts of the estate authorized the sale of 600 acres, oi* so much (not of the 600 acres, hut) of the remaining half league as was necessary to pay all the debts due by the estate of said Pendleton.

The entire record in the case shows that in the case of each order of sale issued it was intended that the administrator should deal with the one-half of the entire league and labor, and, as the entire record may be looked to in determining what was sold by the administrator under the approval of the court, it is clear that under the two sales in question the entire right of Creed T. Pendleton to a league and labor of land was intended to be and was sold. Farris v. Gilbert, 50 Tex. 350, 355; Collins v. Ball, 82 Tex. 259, 266, 17 S. W. 614.

After the lapse of over 50 years, every reasonable presumption should be indulged in to support titles acquired at administrators’ sales made under orders of courts of competent jurisdiction; and where; as in this case, the record shows that the sales as made by the administrator were duly reported with accompanying accounts, showing the disposition of the proceeds, a confirmation of the sales should be presumed, if necessary, to show full title in the purchasers.

It follows, from the application of the foregoing propositions to the case in hand, that the trial court erred in excluding the administrator’s deeds to W. Y. McFarland and J. D. Giddings, and the various deeds and transfers of titles from W. Y. McFarland and J. 1). Giddings to (lie plaintiffs in error, and in giving a peremptory instruction to the jury to find in favor of the defendants in error (plaintiffs below) for any portion of the land in controversy. Other questions raised by ihe assignments of error need not be considered.

The judgment of the circuit court is reversed, and the cause is remanded, with instructions to grant a new trial, and thereafter proceed in accordance with the views expressed in this opinion, and as law and justice may require.