McCARDELL et al. v. LEA et al., 235 S.W. 518

GREENWOOD, J. Plaintiffs in error brought this suit against defendants in error for the recovery of an undivided C3/oo interest in a tract of some 1,431 acres of land out of the J. D. Martinez leagues in Liberty county numbered 6 and 9. Defendants in error answered with a general denial and a plea of not guilty, and filed a cross-action against plaintiffs in error for the recovery of the entire 1,431-acre tract.

Trial without a jury resulted in a judgment that plaintiffs in error take nothing by their suit, and that defendants in error recover on their cross-action the title to, and possession of, the 1,431 acres of land. On appeal to the Court of Civil Appeals, the trial court’s judgment was affirmed (Civ. App.) 200 S. W. 562. James Davis died owning land in the J. D. Martinez leagues, some of it lying east and some of it lying west of the Trinity river, including that in controversy on leagues 6 and 9, both of which lie west of the river.

Plaintiffs in error were heirs of James Davis, and as such heirs claimed the undivided interest for which they sued. Defendant in error J. Y. Lea claimed the land recovered by him as purchaser at a sale made by the administrator of the estate of James Dávis. The question presented by plaintiffs in error is: Was there such description of the land in the administration proceedings as to authorize the conveyance of the estate’s title by the administrator?

The facts to be considered in determining whether the probate court had empowered the administrator to sell and convey the land in controversy, may he briefly stated as follows: James Davis at one time owned all of the Martinez leagues numbered 6 and 9. He conveyed two tracts, aggregating 960 acres, out of the two leagues. Soon after his death, the heirs of James Davis conveyed 1,280 acres out of said leagues in two tracts, by deeds reciting that it was the intention of James Davis to convey the tracts in his lifetime, and that the grantees were equitably entitled thereto.

Prior to July 9, 1875, the administrator of the estate of James Davis had- conveyed Six tracts out of the two leagues, aggregating 4,028% acres. If each of the two leagues had in fact contained 4,-42S acres, there would have remained of same 2,587% acres, which had not been conveyed by James Davis or his heirs or the administrator of his estate.

The actual acreage belonging to the estate and subject to distribution between the heirs, on July 9, 1875, in the two leagues, appears to have been not 2,587% acres, but to have been 4,-177 acres, the excess in acreage being discovered many years subsequent to the probate, proceedings hereinafter set out. The administrator and all parties interested in the estate believed that the unsold land belonging to the estate in the Martinez leagues numbered 6 and 9, on July 9, 1875, was 2,739 acres.

On March 7, 1874, in the administration of James Davis’ estate, the administrator reported to the probate court the lands un-disposed of and subject to distribution between the heirs and distributees. Among such lands were: “2,145 acres, J. D. Martinez, east side of river Trinity in Liberty county, ‘White Oak league’; 2,739 acres, J. D.

Martinez, west side of said river, in Liberty county.” On July 9, 1875, with all persons interested as heirs and distributees of the estate appearing and consenting, the probate court appointed commissioners to partition all the lands mentioned in the foregoing report between the heirs and distributees.

On July 9, 1875, the commissioners reported that the land ordered partitioned was of such character and so situated that no just division thereof among the heirs could be made without diminishing the value of the land, and, on the same day, the probate court confirmed the commissioners’ report, and, with the consent of all the heirs and dis-tributees, the court ordered the land sold by the administrator for cash on the first Tuesday in October next, within legal hours, at public outcry, to the highest bidder, before the courthouse door at Cold Springs, and ordered the administrator to make due report, of his actions.

In the commissioners’ report, and in the order of sale, were included: “2145 acres, J. D. Martinez, east side Trinity river in Liberty county, ‘White Oak league,’ ” and “2739 acres, J. D. Martinez, west side said river in Liberty county.” On November 1, 1875, the administrator reported to the probate court that, in pursuance of the court’s order, he had sold, on the first.Tuesday in October, within lawful hours, at public outcry, at the courthouse door in Cold Springs, lands described by lot numbers from 1 to 13, including: Lot No. 2, 631 aeres, Martinez grant east of the Trinity in Liberty county, J. V.

Lea, for $63.10 Lot No. 3, 621 acres of the same to the same J. V. Lea, for.. 68.10 Lot No. 4, 618 acres of same to the same J. V. Lea for . 61.80 Lot No. 5, 269 acres, Martinez, east of Trinity river in Liberty county, to J. V. Lea, for.... 29.59 Lot No. 6, 684% acres, same to the same, for.. 68.40 Lot No. 7, 684 acres, same to James Davis, for 61.62 Lot No. 8, 684% acres, same to G. B. Byrd, for 61.62 Lot No. 11. 684% acres, Martinez, west Trinity in Liberty county, to A. B.

Searcy, for. 68.47 On November 6, 1875, the probate court confirmed the sales reported, by an order duly entered on its minutes, reciting that the administrator was reporting sales made in pursuance of an order of the court, and directing the administrator to make titles on compliance by the purchaser with the terms of the sales. It was established by parol evidence that at the sale the administrator had some kind of a sketch made by surveyors, and a blackboard plat, which showed the unsold land belonging to the estate.

The blackboard plat showed the unsold land on the Martinez leagues numbered 6 and 9, west of Trinity river, to be subdivided into four lots, each calling for 684% acres, and numbered respectively lot No. 6, lot No. 7, lot No. 8, and lot No. 11. Lot No. 11 was first sold to A. E. Searcy; lot No. 8 was next sold to G. B. Byrd; lot No. 7 was next sold to James Davis; and lot No. 6, was next sold to defendant in error J. V. Lea.

After confirmation of the report of the sales and payment of bids, the administrator executed deeds to the purchasers to the respective tracts purchased by them, such deeds describing the boundaries of each lot in accordance with the blackboard plat. There is no substantial difference between the description of the I,431 acres of land in the administrator’s deed to J. V. Lea, as its terms were proven by parol, and in the petition and judgment herein.

These proceedings disclose not an order for the sale of an undefined portion of a larger tract of land, but an order for the sale of the land not previously disposed of, and still belonging to the estate of James Davis in the J. D. Martinez leagues 6 and 9, in Liberty county, west of the Trinity river, estimated at 2,739 acres.

This conclusion is inevitable if we give effect to the manifest intent and purpose of the probate court to effect a partition between the heirs of all undisposed of land belonging to the estate, by means of a distribution of the proceeds of the sale thereof, or, if we adopt the probate court’s own

interpretation of the order of sale in its decree confirming the sales by the administrator, not of a part but of all the undisposed of lands of the estate in these two leagues, wherein it is expressly recited that such sales had been made in pursuance of the court’s previous order. The order of sale was designed to enable the court to effect a final settlement and distribution of the estate. .It ought not to be so construed as to defeat the court’s' design. Yet that design must have failed of accomplishment through a sale which would have left undivided and unsold a portion of the estate’s lands.

The sale ordered was for the benefit of , the heirs, who were entitled to all its proceeds. With the heirs appearing and assenting to the original order for partition, they and the court clearly meant for all undis-posed of lands to be divided, and not for a mere part thereof to be divided. Had the commissioners proceeded to divide all the estate’s lands in the Martinez leagues 6 and 9, who could doubt that their action would have been warranted by the court’s order? Yet it is undeniable that whatever lands were first meant to be partitioned were later meant to he sold.

It should now be accepted as settled in this state: First, that “the policy of the law does not require courts to scrutinize the proceedings of a judicial sale with a view to defeat them; on the contrary, every reasonable intendment will be made in their favor, so as to secure, if it can be done con•sistent with legal rules, the object they were intended to accomplish;” second, that the description in probate orders for the sale and conveyance of land by an administrator is sufficiently certain where it may, by means of extraneous evidence, be so applied to the land as to reasonably identify it; and, third, that in construing probate orders controlling effect should be given to the intention of the court as it may be reasonably gathered from the entire record of the administration.

Smith v. Crosby, 86 Tex. 19, 23 S. W. 10, 40 Am. St. Rep. 818; Hermann v. Likens, 90 Tex. 453, 39 S. W. 282; Taffinder v. Merrell, 95 Tex. 101, 65 S. W. 177, 93 Am. St. Rep. 814; Slaughter v. City of Dallas, 101 Tex. 317, 107 S. W. 48; Holman v. Houston Oil Co. (Civ. App.) 174 S. W. 891; Macmanus v. Orkney, 91 Tex. 31, 40 S. W. 715; Hurley v. Barnard, 48 Tex. 88. We follow the established rule of construction for all written instruments in giving the language of the order of sale that

interpretation which makes it operative instead of that which would invalidate it. Hancock v. Butler, 21 Tex. 806; Curdy v. Stafford, 88 Tex. 124, 30 S. W. 551. Applying the language- of the report of sales and of the order of confirmation to the lands of the estate, by means of extraneous evidence, we find that the administrator proceeded to sell, and that the court proceeded to confirm the sales of, all lands belonging to the estate in the Martinez leagues, including the sale of the land in controversy to defendant in error, J. Y.

Lea, and, that the court proceeded further to adjudge that the sales were made in pursuance of the court’s previous order. The lands sold were described in the administration proceedings, subsequent to the order of sale, as lots bearing certain numbers, belonging to the estate in the J. D. Martinez survey. The parol evidence disclosed that before the sale the administrator had subdivided the estate’s lands into lots, each lot having a given number and clearly defined boundaries, and that the land in controversy .was designated as lot numbered 6.

The call, which would locate the lot east of the Trinity river, being inconsistent with the boundaries of lot No. 6, and being the mistaken call, is to be ignored. Wilson v. Giraud, 231 S. W. 1078. We think, therefore, that the description in the report of sales and order of confirmation, when applied to the land, by the use of extraneous evidence, did identify the land with reasonable certainty. Morrison v. Dailey, 6 S. W. 427; Spencer v. Levy (Civ. App.) 173 S. W. 557.

The record of the administration taken as a whole, aided by the competent parol evidence, clearly reveals the intention of the probate court to authorize the sale and the deed, as made by the administrator. The correct judgments were rendered by the district court and by the Court of Civil Appeals, and it is ordered that said judgments be affirmed. other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes