J. A. Davis v. Jane Touchstone et el., 45 Tex. 490

Gould, Associate Justice. The leading objections to the order of sale to foreclose a vendor’s lien are, that it was made on the application of the administrator, and that the land ordered to be sold is not sufficiently described. In regard to the first point, it may be premised that the order recites that it was made on the petition of the administrator, and although the petition did not appear in the record, it must be assumed that there was a petition. (Alexander v. Maverick, 18 Tex., 192; Withers v.

Patterson, 27 Tex, 491.) Under the probate law of 1848, the power of the Probate Court to order a sale of lands for the payment of debts on the application of the administrator, and, indeed, the duty of the administrator to apply for such an order, are too plain to be doubted. (Paschal’s Dig., art. 1314.) Itwould, perhaps, suffice to maintain the validity of the order of sale in the case, that it was made on the petition of the administrator arid for the purpose of paying a debt of the estate.

But we are of opinion that it was competent and right for the administrator, in applying for the sale of lands, subject to a lien for a debt allowed and approved, to recognize that fact, and. to ask for such an order as would authorize him to apply the proceeds of the sale to the discharge of the secured debt.

The statute directed the administrator to pay such debts “ out of the proceeds of the property, subject to such piortgage or lien,” (Paschal’s Dig., art. 1839;) and it might well happen that the interest of the estate would require Mm to take the initiative in procuring the sale of incumbered lands, without waiting for the. application of the second creditor. (Paschal’s Dig., art. 1319.) TMs construction of the statute is in accord with the reasoning and spirit of the decisions of tMs court on questions of a. similar character arising under the probate law of 1843. (Alexander v. Maverick, 18 Tex., 192; Allen v.

Clark, 21 Tex., 404.) The objection, that the order of sale does not sufficiently describe the land to be sold, might be disposed of by a reference to former decisions. In the case of "Wells v. Polk, 36 Tex., 121, which arose under the same statute, an order of sale was held valid when there was no attempt to identify the land to be sold in either the application or the order. (See also Wells v.

Mills, 22 Tex., 302.) The provisions of the statute reqmring the order to describe the property to be sold, like the provision requiring the application of the administrator to be accompanied by an estimate of expenses, claims, and to be verified by affidavit, must be regarded as directory. (Kleinecke v. Woodward, 42 Tex., 310; Paschal’s Dig., arts. 1314, 1321.) In tMs case, however, if the different orders which preceded and authorized the sale be taken together, it does not appear that the description is insufficient to enable a party to identify the land.

The sale was to be of three hundred and twenty acres “ bought from J. A. Davis,” or so much thereof as would satisfy the vendor’s lien. The inventory of the estate was in evidence, and contained but one tract of land, described simply as “372 acres.” The description in the orders is not such as should have been given, but it cannot be said to give no data for identification. As to the order allowing the substitution of the name of J. A. Davis as the real purchaser, after a confirmation of the sale to II. W.

Davis, we do not regard it as beyond the power of the court, if, as must be presumed, it was made with the assent of H. W. Davis. Even without such an order, it would have been competent for H. W. Davis, his bid having been paid, to have the deed made to such person as he might direct. The purchase-money appears to have been paid, under the authority of the court, by a credit on the claim of J. A. Davis, and it is a fair presumption that IT. W. Davis directed or assented to the substitution.

Without discussing other minor objections taken, we hold that, though the orders of the Probate Court are open to criticism and are quite defective, enough appears to show that the court had jurisdiction to make them, and that they are not on their face nullities. For the error in excluding these orders, the judgment is reversed and the cause remanded. Beversed and remanded.