J. B. Hudson et al. v. J. H. Jurnigan et al., 39 Tex. 579

Walker, J. Abner Lee settled in Texas in 1834; he died intestate in 1835. In 1838, his grandson, David Andrews, administered on his estate, apparently for no other purpose than that of proving up Lee’s right to a certificate for a league and labor of land. This he did, and it appears to be the only act of his administration. Under the act of the Congress of the Republic, of February 5, 1840, Andrews was cited to settle his account, or show cause for additional time. The citation does not appear to have been served. It is claimed he left the country, and his letters were revoked. In 1842 W. S.

McClure was appointed administrator de bonis non of Lee’s estate. It appears that the land certificate was the only property of the estate at this time. Lee at his death left one daughter, who subsequently died, leaving five children, some of whom are appellees; three of them, however, •are represented by Jurnigan, who has purchased from them whatever interest they had in the land now in suit. McClure was a land locator, and probably applied for letters for the sole purpose of getting the certificate to locate. Be this as it may, we do not think the matter has much to do with this case. The Probate Court of.

Red River county ordered a sale of one-third of the certificate to raise funds, to pay the costs and expenses of administration and the fees incident to procuring a patent for the other two-thirds of the certificate. John B. Craig became the purchaser of one-third of the •certificate sold under an order of court, and it is claimed that the court confirmed this sale, which is probably true, but it cannot be denied that the record of the proceedings-in the probate court is somewhat lame and imperfect. Craig sold and conveyed his interest in the certificate to Wm. H. Moores.

Moores dying, his heirs located on the land now in controversy in Tarrant county, which was patented to them in 1857. They went -into possession of the land in 1858, made improvements, and the appellants are purchasers from them, claiming to be so in good-faith, for a valuable consideration, and are in possession! of the land.

McClure located the remaining two-thirds of the certificate on valuable land in Collin county, paying the expenses of surveying, locating and patenting, out of the proceeds of the sale made to Craig, And now the heirs of Lee, after appropriating the land so located in Collin county, and having acquiesced in McClure’s acts without a murmur, and after a lapse of twenty-nine years-,. they and Jurnigan, in 1871, bring this action of trespass-to try title, and haye actually recovered a judgment for-the land in the District Court.

If there is any attempt at showing fraud on the part of McClure in any of his transactions connected with Abner Lee’s estate it has totally failed, and it is pretty safe to infer, from all the facts in the case, that the heirs of Lee secured an early location of their grandfather’s land certificate, and on valuable land, by means of McClure’s administration.

Whether this object alone would have clearly justified the probate court in granting letters to McClure in 1842 may be somewhat doubtful; but upon a mere expression of this doubt this court could not be justified, at this very distant day, in declaring null and void and setting aside-the proceedings of the probate court under which the-appellants derive their title. They undoubtedly are purchasers in good faith for a valuable consideration, and as-such must be protected. Our attention is called to the case of Withers v. Patterson, 27 Texas, 495, 501. In this case Mr.

Justice Bell holds, that if the case is one of a grant of administration when the court had no power to grant letters of administration, all proceedings of the court in the progress of such an administration are null and void, and may be shown to be so in any collateral proceeding in which they are relied on to support a claim of right.

This doctrine has been more than once approbated by the present bench, but not to help out a claim which must, upon every principle of equity, be regarded as stale, and where the doctrine of estoppel by matter in pais so evi- ■ dently applies to the party who seeks to impeach the record, as it does in this case. The grandchildren of Abner Lee quietly went upon the land located for them in Collin county, have reaped and enjoyed the fruits of McClure’s sale, by which he raised the money to pay the expense of locating those lands, for twenty-nine years before bringing this suit.

But whilst we believe the reasons stated are abundantly sufficient to support the title of the appellants to the land in controversy, we by no means concede that the probate court was not fully authorized in granting letters of administration to McClure. Probate courts have an equitable j urisdiction over minors and the estates of deceased persons, and they are not restricted in their equitable powers, unless by positive statute—which we think was not the case here—from doing any act for the protection of such estates and the estates of such minors.

Certainly it will not be contended that the act of Andrews in proving up the equitable right of Lee to the land in controversy was not a very necessary act, but we think it was equally necessary that some one should present the certificate and have it approved by the traveling board of land commissioners ; and further-, to locate it early upon well selected lands, at as little expense to the heirs as necessity would permit; and all this seems to have been done and acquiesced in for a great lapse of time.

Touching the irregularities pointed out in the action of the probate court, which may have challenged a closer scrutiny of this court-had the matter been brought before it a quarter of a century earlier, we have more than once laid down the doctrine that courts should liberally construe all statutes authorizing executors and administrators to sell land, and much indulgence has been given to apparent irregularities in judgments and decrees, in the entries of clerks, etc. (Lynch v. Baxter et al., 4 Texas, 439.) But there is a doctrine announced in Burdett v.

Silsbee, 15 Texas, 608, wherein the court says the purchaser is not bound to look further back than the order of the court. ■And to support this doctrine the appellants cite 2 Peters, 168; 2 Wallace, 216; 2 Howard, 319. In Burdett v. Silsbee the court uses forcible language • to settle a point strongly analogous to that raised in this ■case, viz.: “It would be strange indeed if it could be shown at this time that the settlement of any considerable number of estates, administered in the early, or even in the later, years of the Republic, were conducted conform-ably to the laws in every particular.

It was frequently difficult for those learned in the law to tell what law governed in certain cases, and how can it be otherwise than ■that many errors and irregularities were committed. “And when it is considered that all the property of the ■ country must, of necessity, have passed through these - courts once every few years, it will be seen of what vast .importance it is that these principles of the law which protect the title of the just and rightful possessor shall ¡be maintained inviolate.” In Baker v.

Coe, 20 Texas, 436, on the doctrine of presumptions, it is held that when the proceedings in the court were of long standing, and when the records were kept in an uncertain manner, even an order of sale would, be presumed. In Alexander v. Maverick, 18 Texas, 195, a doctrine equally applicable to this case is held: It is to the effect that probate courts have jurisdiction in all cases over the estates of intestates, and any one acting upon the faith of the judicial acts of such courts will be protected.

The instruction of the court in this case to the jury, in directing them to return a verdict for the plaintiffs, was erroneous, and there was error in ruling out the records of the probate court, and for these reasons the cause will be reversed and remanded. Reversed and remanded.