I. L. Walker v. Lawler's Heirs, 45 Tex. 532

Gould, Associate Justice. Originally, tins was a suit for partition of a league of land, brought in 1858, by Lawler’s heirs against appellant Walker, A. Ilerron, and others. In 1868, (and as to the history of the case during these ten years the record is silent,) Walker filed a cross-bill, malting the administrator of E. B. Miller a parly, and, by agreement, in December, 1872, the case was tried as a suit for the recovery of the entire league of land, by Lawler’s heirs and Harwood, administrator of E. B.

Miller’s estate, as plaintiffs, against Walker, as a defendant; the latter abandoning “ all issues made in his pleadings, save and except the issue wherein it is sought to subrogate defendant to all the rights of his vendors as against the estates of Thomas B. Miller and E. B. Miller, upon which point the court sustained exceptions to defendant’s pleadings, and he declining to amend, judgment was rendered in favor of appellees for the land in controversy.

Whether these exceptions were ptroperly sustained, is the general question presented, and in order to its determination and to ascertain who were his vendors, and the nature of then* rights, to which he claimed to be subrogated, it is necessary to state the substance of the pfieadings of Walker. Walker alleged the institution, in 1846, by Yanderlip and Anderson, attorneys, of a suit in favor of one Hawkins, administrator of T. B.

Miller’s estate, against one DeWitt, for the league of land in controversy, and that it was prosecuted (Gordon taking the place of Anderson, who died) to a successful termination in the District Court in October, 1851, and was, on appeal, affirmed in this court in 1853. (See 9 Tex.) A written agreement between Hawkins and Yanderlip> & Anderson was set out; but we are of the opinion that it had no reference to the suit brought by Yanderlip & Gordon, and that then* right to compensation for their services Avas not founded on that contract. In May, 1852, it is alleged that E. B. Miller, stated to be sole owner of T.

B. Miller’s estate, conveyed by deed the entire estate, including the land, to one A. Herron, who, as

part consideration, assumed payment of the fees due said attorneys, and who executed to Miller a mortgage on all the lands of the estate to secure his notes to Miller for the purchase-money; that on demand of Yanderlip) for one tenth of the land or its value, “ the said E. B. Miller having previously recognized their rights thereto,” certain three hundred and fifty acres were valued at $2,214, and set aside as a reasonable fee, and, by direction of Vanderlip, a title bond, and afterwards a deed thereto, was made by Herron to Wesley Morrison, who, on January 2, 1854, conveyed to Walker. The death of E. B.

Miller, and the administration on his estate by Harwood; the death of Herron, and the administration on Ms estate by G. E. L. Herron; the approval and allowance of the notes and mortgage against Herron’s estate, and the procurement, by Harwood, from the County Court of an order of sale of the mortgaged land in November, 1863; a sale thereunder, in 1868, to Harwood, and conveyance to Mm, as administrator of E. B. Miller, are also alleged.

The cross-bill further claims that if Walker’s title to the land should fail, that he be subrogated to the rights of Vanderlip, Anderson, and Gordon, to whom Ms vendor, Morrison, paid, in consideration for the land, a legal and equitable claim against the estate of Thomas R. Miller, and prays that Harwood, as administrator and individually, be made a defendant; and that if he cannot hold the land, that he have judgment against the legatees of T. R. Miller, or their heirs as legatees, for $2,214, with interest, and for general relief.

In an answer filed December 12, 1873, (most of which was an attack on the alleged will of T. R. Miller, under which .Lawler’s heirs claimed,) it was averred that E. B. Miller and Richard and Thomas Dabney Miller were next of kin and heirs of Thomas R. Miller. In an amended answer of same, date, defendant asserts that the claim of Vanderlip, Anderson, and Gordon was for expenses of administration, and constituted a preferred claim and lien on the property of the estate; that E. B.

Miller, in his deed to Herron, “recognized and confirmed the fact that the lands or parts of lands conveyed by said deed were encumbered by fees due and other charges of litigation; that therefore all parties claiming by, through, or under said E. B. Miller, were estopped from denying the existence of said charges and encumbrances.” The exceptions of Harwood to Walker’s pleadings, so far as it is necessary to consider them, raise two questions: 1st.

Are such facts stated as show that Vanderlip & Gordon held a claim which gave them an interest in the league of land, or constituted a charge upon it in the hands of E. B. Miller or his representatives ? 2d. Does Walker show that he is entitled to the benefit of that claim ? As to the first point, without reference to the written agreement of Vanderlip and Anderson, the averments of the cross-hill and answers show that Vanderlip and Gordon rendered services to the estate of Thomas B. Miller which gave them a just claim against that estate in the hands of E. B.

Miller, and which was recognized by the latter as such to thé extent of ten per cent, of the value of the league of land recovered by their efforts. Because the debts of the deceased and the expenses of administration are charges against the estate in the hands of the heir, E. B. Miller and Ms vendor, Herron, held the property of the estate of T. R. Miller subject to that claim, when it was supposed to be adjusted by a conveyance by Herron of part of the encumbered estate for that purpose, and the claim was given up in consideration of the land so conveyed. 2d.

In regard to the right of Walker to protect himself, under tMs claim, against any action of E. B. Miller or his representatives interfering with the adjustment, and claiming back the land conveyed in payment of the claim, we think the equities which support that right are strong and clear. Let us suppose that E. B. Miller, shortly after the adjustment, had brought suit on his mortgage against Herron, and had made parties of Vanderlip and Gordon and their vendors, Morrison and Walker, seeking to subject the land in their hands.

It will not be questioned that in such a suit the claim of Vanderlip and Gordon could have been set up as against. Miller as still unsettled, and as entitled to he first paid out of the proceeds of the foreclosure. Miller could not, at the saíne time treat the adjustment as a nullity and claim the benefit of it.- If made with his assent, he had no right to disturb it. If made without Ms assent, whilst it was allowed by him to remain undisturbed, the settlement inured to Ms benefit, and when he and his representatives see fit to repudiate it, they should restore the benefit received.

The principle is the same wMch entitles a bona fide purchase at an execution or administration sale, held to be void, to be substituted to the rights of the execution or other creditor who received the proceeds to the extent of the purchase-money paid. (Howard v. North, 5 Tex., 116; Volli’s Heirs v. Fleming’s Heirs, 29 Missouri, 152; Springs v. Harren, 3 Jones’ Eq., N. C., 95; Scott v. Dunn, 1 Dev. & Bat.

Eq., 426.) The principle is the same said by Justice Story to be a broad principle of the Boman law. “ It is that, where a bona fide possessor or purchaser of real estate pays money in discharge of any existing encumbrance or charge upon the estate, having no notice of any infirmity in his title, he is entitled to be repaid the amount of such payment by the true owner seeking to recover the estate from him.” (Bright v. Boyd, 1 Story, 478, as cited in 29 Mo., supra; see also Bright v. Boyd, 2 Story, 607.) In this case, Herron was not an interloper; and Vanderlip, in settling with Mm, took, as against E. B.

Miller’s estate, a legal title, subject only to the mortgage of Herron to Miller. His claim, then, constituted a charge upon the land superior to the mortgage; and Walker, who bought the land, takes all the rights in the land wMch Vanderlip had. Walker, certainly, as the owner of the equity of redemption, was entitled to redeem the mortgage, and also to contest it, by showing that he represented in equity what was equivalent to a prior mortgage, and it does not ap>pear why those rights may not be yet asserted.

Limitation would not commence until a clear act of Miller or Ms representatives repudiating the sale by Herron, and the pleadings show nothing which would put the statute in motion prior to Walker’s cross-bill. It does not appear to have been intended to admit by the agreement made, that Walker was precluded in any way by the foreclosure in .the Probate Court, to which he does not appear to have been a party; and it certainly was not intended to admit that those proceedings cut off his right to be subrogated to the right of his vendors.

The indefiniteness of the issues intended to be presented by the agreement has been one difficulty in this case; hut, notwithstanding this indefiniteness, we think there was evident error in sustaining the exceptions of Harwood, administrator of E. B. Miller, and this error requires a reversal of the cause as to all parties. The judgment is reversed and the cause remanded. Bevebsed and bemanded.