Andrew Neill v. Elizabeth Cody, 26 Tex. 286

Wheeler, O. J. We are of opinion that there is no error in the judgment. The court rightly instructed the jury that the record of the proceedings of the Probate Court of Austin county, read in evidence, did not show title in the appellant. The record in question showed -only the petition of the administrator, the order of the court thereupon for a sale, and the report of sale by the administrator. There does not appear to have been any approval or confirmation of the sale, as the statute required. (O. & W..

Dig., Repealed Laws, art. 194.) There is no evidence that the sale Was completed by a compliance with its terms by the purchaser. There is the report of the administrator to the court, to the effect that the defendant, Neill, bid off the property upon a credit of twelve months; but it does not appear that he ever gave his notes for the purchase money, or that the sale was completed. No action of the court appears to have been taken as the statute required, or deed made by the administrator.

This was comparatively a recent transaction, and if the sale had in fact ever been completed, the records of the court, which were accessible, would doubtless have shown the subsequent proceedings requisite to make out the transfer of the title. We must conclude that the terms of sale were not complied with by the purchaser, and that no further action of the court was invoked after the order of sale. The purchaser was not required to comply with the terms of the sale until it was confirmed. (Bradbury v. Red, 23 Tex.

R., 260.) ' 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. It was objected to the admission of the deposition of the witness, Thompson, that the certificate of the officer before whom it was taken was not such' as the law requires. In what particular the certificate was defective is n’ot pointed out.

It is supposed that the objectionUntended to be taken was that it is not stated by the officer in his certificate that the answers of the witness were “signed and sworn to by the witness before him.” But this is evidently what was meant by the language employed in the certificate; and we think it sufficiently expressed, and that the certificate is a substantial compliance with the statute.. That the plaintiff was heir of the grantee of the land for which she sued, was sufficiently established by the evidence to warrant the finding of the jury.

The court did not exclude from the consideration of the jury any part of the statement of the defendant, Neill, proved by the witness, Wilson. His whole statement in the conversation proved was before them for their consideration; and the court might very properly decline to instruct them, at the instance of the defendant, that it was so, or what effect they should give to his statement as evidence. - , It was not error for the court to decline to submit special issues to the jury.

It was entirely within the discretion of the court to submit the issues proposed by counsel or not; az}d we think the court very properly declined to submit them, as the case was presented. The court "did not err in refusing the instruction asked by the defendant upon the defence of limitation. The defendant, Neill, did not produce evidence-of possession held by himself under his recorded deed, for any period of time. Both the defendants, Byler and Watson, went in as the vendees and not as the tenants of Neill.

Under- the charge of the court, the land sold to the former was accorded by the verdict to, and held by his vendee under the statute; whether rightly or not, it is not necessary to inquire, as the plaintiff has not complained of the verdict and judgment in his favor. Watson’s possession was not continued a sufficient length of time to give him the benefit of the statute; and if it had been, it could not have availed his co-defendant, Neill, since he held in his own right as vendee, and not in the right of the latter as his tenant.

The possession of Neill’s vendees was not his possession, nor did it enure to his benefit as to the remainder of the tract out of which their purchases were taken. This point was decided in the case of Cunningham v. Frandtzen, (October Term, 1861.) There is no error in the judgment, and it is affirmed. Judgment affirmed.