Ira Millican et al. v. James McNeill et al., 102 Tex. 189

Mr. Justice Williams delivered the opinion of the court. The defendants in error as heirs of John M. Stephen brought' this suit to recover of the plaintiffs in error an undivided one-sixth interest in a lot in the toAvn of Stephensville, admitting in their petition that the defendants were the owners of the other five-sixths. The chief defense was that of limitation, and the question as to its sufficiency depends upon the following facts. John M. Stephen, who owned the lot in controversy, died in 1863, leaving two children, one of whom? was the wife of W. W. McNeill.

McNeill became the administrator of Stephen’s estate and was acting as such as late as 1877. His wife died in 1864 and he inherited from her a life estate in one-third of her half of the real estate which had descended to her from her father and thus became entitled to a life estate in -one-sixth of the lot. In 1871 he procured an order for the sale of the lot, which is admitted to be void because it was made at a time when the court could not laAvfully sit. He sold the lot to J. W.

Moore and executed to him a deed reciting his authority to act as administrator, the order of sale and the sale, and by which as administrator of the estate he bargained, sold and conveyed the lot to Moore, to have and to hold to him and his heirs in fee simple forever. The deed closed with this covenant: “And I, the said W. W.

McNeill, administrator as aforesaid, do covenant with and to the said Moore, his heirs and legal representatives to warrant and forever defend this title to the aforesaid lot, against the claim or claims of any and all persons lawfully claiming or to claim the same or any part thereof, to the extent that I am bound to do according to law as such administrator and no further.” The defendants claim under this deed and have held such possession as to bar the claim of the heirs unless it is true that their cause of action for the recovery of the one-sixth of the land first accrued upon the termination of the life estate therein of McNeill by his death, which occurred less than five years before the institution of the action.

The contention of the defendants’ counsel is that nothing passed by the administrator’s deed to Moore, and that those holding the lot "were naked trespassers against whom plaintiffs, as owners of undivided interests therein, could have at any time maintained an action for- the recovery of the possession of -the whole, which contention is based upon the doctrine of the cases of McConnico v. Thompson, 19 Texas Civ. App., 539, and Elcan v. Childress, 40 Texas Civ. App., 193.

The counsel for plaintiffs contend that McNeill’s- deed passed to Moore his life estate and entitled the latter and his vendees to possession until that estate ended upon McNeill’s death, and that plaintiffs’ cause of action for the recovery of the remainder only arose upon the happening of that event.

The District Court and the Court of Civil Appeals sustained the latter contention, and we are of the opinion that this is correct. .We do not base our opinion upon the covenant of warranty in the administrator’s deed, finding it unnecessary to go to the extent of holding that such warranty bound McNeill personally, although there is authority for the proposition. Aven v. Beckon, 11 Ga., 1; note to Allen v. Sayward, 17 Am. Dec., 221, et seq. That question would become important if those holding under the deed were claiming a title acquired by McNeill after its execution.

The principle controlling this case is that which estops the maker of a deed purporting to convey an estate of a particular kind from afterwards asserting that such an estate did not pass. McNeill owned the life estate when he made the deed in question and had full power to convey it then. His deed undertakes to convey the lot itself and full title to it as the property of the estate, without mention or reservation of any claim of his own.

Although he assumes to convey as administrator, he assumes as well that the title is in the estate, and lie should not be heard afterwards to assert that any part of it was in himself. It does not appear that he ever did so claim. While there may be some diversity of opinion on the question, the weight of authority is said to be in fav-or of the view which we express, and this court has heretofore adopted that view. Corzine v. Williams, 85 Texas, 499; Frisby v. Withers, 61 Texas, 134; 16 Cyc., 712; Brown v. Edson, 23 Vt., 449; Phillips v. Hornsby, 70 Ala., 414; Johnson v. Brauch, 62 Am. St. Rep., 857.

Many of the reported cases are complicated by questions as to the operation of covenants of warranty upon after-acquired titles, which do not arise here. Allen v. Sayward, 17 Am. Dec., 221. The limitation put by McNeill upon his covenant of warranty does not attempt to restrict the language whereby he undertook to convey full title to the lot, and does not modify the effect of that language upon the estate then held in his own right.

His deed said to the grantee that the property belonged to the estate, and it would be a fraud to permit him afterwards to say that it belonged to him, and this is a just reason, aside from the technical learning upon the subject, for holding him bound.

It follows that those who thus became invested with the title to his estate for life were rightfully in possession of the land as joint owners until that estate terminated, and that the heirs of Stephen, whose title to the remainder did not pass by the administrator’s sale, had no right of action to recover from them their interest burdened with the life estate so long as the latter existed. Another objection to the judgment is that the heirs were not required to refund the purchase money paid for the property which went to discharge debts by which their title was encumbered.

This equity was pleaded by the defendants and the principle invoked is well settled by the decisions of this court. Only one need be cited. Halsey v. Jones, 86 Texas, 488. The Court of Civil Appeals did not apply the principle because it thought the fact relied on- was not shown by the evidence. The record shows that in 1877 the administrator made an exhibit to the Probate Court showing the receipt of monies including $150 as the purchase money of the lot in question, and showing further that after allowing all credits to which the estate was entitled there remained a large balance due to him.

This was -approved by the court. From this it plainly appears that after the estate was credited with this purchase money it still owed the administrator. The approval of the exhibit establishes this result and necessitates the conclusion that the money was applied to the payment of legal charges against the estate. The proof upon the subject is- in the same condition as was that in Halsey v. Jones. There, the final report of the administrator showed a claim in his favor which was established by the order of the Probate Court, in payment of which the land in controversy was turned over to him by the order.

It was held that the title did not pass, but that the action of the court showed that a debt of the estate was discharged and that the heirs, before recovering the property, must pay that debt with interest. The proceedings here show with quite as much certainty that the purchase money of this land was applied to charges allowed and established by the court. The purchase money was received by the administrator at the date of the sale, but we are of the opinion that interest upon it is chargeable to the heirs only from the time at which it was applied to the payment of charges against the estate.

The record does not show any date at which this was done earlier than that at- which the exhibit was filed. Interest will therefore be calculated from that date. On the authority of the case referred to the judgment will be reformed so as to allow the plaintiffs below to recover the interest sued for, conditioned upon the paying to the defendants within six months from the date of this judgment the sum of twenty-five dollars ($35) which is one-sixth of the purchase price of the lot ($150) with interest thereon at six percent from May 24, 1877.

The costs of appeal and writ of error will be adjudged against defendants in error. Reformed and affirmed.