John G. McBee et al. v. Robert Johnson et al., 45 Tex. 634

Gould, Associate Justice. The subject-matter of this suit of trespass to try title, is four hundred and six acres of land, part of the W. H. McBee headlight, claimed by the appellants as the heirs of W. H. McBee, deceased, and claimed by the appellees (defendants in the District Court) under a sale by the administrator of the estate of said W. H. McBee.

The validity of that sale is the main question in the case, the appellants contending that the order of sale does not “ describe the property to be sold and specify the terms of sale,” as required by the statute then in force, (Paschal’s Dig., art. 1321;) and that therefore the order is a nullity, and was erroneously admitted in evidence over their objection. The order of sale was made by the County Court of Kaufman county in April, 1857, and is as follows: “This day comes into court Henry Scoggins, administrator of the estate of W. H.

McBee, deceased, and presents his petition, praying for an order to sell the real estate of said deceased, consisting of four hundred and six acres of land; which petition was allowed by the court. And it is further ordered by the court that said sale take place on the first Tuesday in June, A. D. 1857, at the court-house door, in the town of Kaufman, in accordance with law.” The inventory of W. H.

McBee’s estate was in evidence, and shows but one piece of real estate, thus described: “406 acres of land, (valued,) at $10 per acre.” In June, 1857, the administrator reports a sale, had in obedience to the order of the court, on Tuesday, the 2d of that month, at the courthouse door in Kaufman, as follows: “400 acres of land, purchased by Enoch P.

Chisolm for $2.35 per acre, upon twelve months’ credit, with approved security, and mortgage upon said land for the purchase-money — making it nine hundred and fifty-four dollars and ten cents, ($954.10.)” The mistake in the quantity of land (given only in figures) is evidently clerical, the total price or purchase-money being computed for four hundred and six acres.

By an indorsement on this return of sale, signed by the chief justice of Kaufman county, it appears that the sale was approved, as farther appears by the following order, made at the July Term of the Kaufman County Court..- “blow comes into court Henry Scoggins, administrator of the estate of W. H. McBee, and presents his sale bill of certain property belonging to said estate, which is hereby approved and- ordered to be recorded.

And be it further ordered, that the administrator be required to make a good and sufficient deed to the purchaser.” It was proven by Chisolm that he bid off the land as agent for Kobert and Mathew Johnson; and it was also in evidence that the Johnsons paid the purchase-money, and went into possession, receiving from the administrator a deed to four hundred and six acres of the W. II. McBee headright, which deed purports to be made in pursuance of the order confirming the sale, and attempts to give the field-notes of the tract conveyed.

The field-notes, as given, in consequence of a clerical omission of a few words, fail to properly describe the land; but by comparing them with the field-notes of that part of the W. H. McBee headright allotted to W. H. McBee, which were in evidence, it is plain that the object was to copy the field-notes of the latter tract.

Without reference, however, to this deed, we think that the order of sale, taken in connection with the inventory, sufficiently describes the real estate ordered to be sold to admit of its being identified; and further, that taken in connection with the general provision of the law, that sales of land for the payment of debts, (save in certain specified eases,) shall he made on a credit of twelve months, the terms of the sale were sufficiently specified.

In a recent case which was here decided, following the former rulings of this court, which are there referred to, an order of sale, very similar to this in its description of the property to fie sold, was held to be valid. The failure to give a full description of the land in the orders of the court, where sufficient appears to admit of its identification, and the failure to specify at length the terms of sale, where the intention is plain that the sale should be made on the usual terms, are at most mere irregularities, which cannot be held to make the orders and proceedings nullities.

The order of sale, the sale, the confirmation thereof, and the compliance by the purchaser with the terms of sale, (which last is certainly accomplished by the payment of the purchase-money,) constitute an equitable title, sufficient to protect the purchaser, without a deed from the administrator. (Sypert v. McCowen, 28 Tex., 638; Bartlett’s Heirs v.

Cocke, 15 Tex., 477.) It follows, from what has been said, that there was a valid sale, sufficient to protect the defendants, notwithstanding any defects in the administrator’s deed, unless the plaintiffs were right in the further objection made to the admission in evidence of these orders and proceedings, that they were,'under the pleadings, irrelevant. The original petition claimed so much of the W. H. McBee headlight league and labor as was located in Kaufman county. The defendants first answered by a plea of not guilty, and afterwards answered specially, claiming 406 acres of the W. H.

McBee survey, named in plaintiffs’ petition, giving the same imperfect field-notes that were given in the administrator’s deed, adding, that it was the same land conveyed to them by the administrator, and disclaiming as to any other part of the W. H. McBee survey. The plaintiffs, by an amendment, recite the disclaimer of defendants, and allege that defendants are in possession of the land claimed by plaintiffs; “that is to say, that part of said league, set apart and partition thereof to W. E. McBee, containing 406 acres,” giving the field-notes thereof.

These field-notes so far correspond with the field-notes of the tract claimed by defendants as to make it evident that the disclaimer of defendants was not intended to apply to the 406 acres, in controversy. The only intelligible construction of defendants’ disclaimer is, that it applied to all of the "W. H. McBee survey, except 406 acres sold by the administrator of W. E. McBee’s estate. In fact the plaintiffs, in making out their case, produced in evidence the admission of defendants, that the land in controversy, described in plaintiffs’ amended petition, was the property of William E.

McBee, deceased, one of the children and heirs of W. H. McBee at the time of his decease; that plaintiffs were the heirs of said W. E. McBee, and that the defendants were in possession of the land described in plaintiffs’ amended petition. The case was tided under pleadings bringing in issue the plaintiffs’ title to this 406 acres of land, and the evidence offered was certainly relevant to that issue. There is an assignment of error, that the court erred in its charge to the jury, which might be disregarded, as not sufficiently specific.

Whilst the charge of the com’t may be in some respects open to criticism, as not applicable under the pleadings, we find in it nothing calculated to mislead the jury as to the real issues on which they had to pass. Under the evidence the verdict was the only one which could have been properly returned. The judgment is affirmed. Affirmed.