Cave J. Hurley v. E. H. Barnard et al., 48 Tex. 83

Moore, Associate Justice. It cannot be disputed, that the copy of the record from the Probate Court of Hopkins county, given in evidence by appellees, over appellant’s objection, shows that the administration upon the estate of Thomas H. Hurley, deceased, appellant’s father, was conducted in quite a loose and informal manner; and that many glaring irregularities and errors are exhibited in the action of the court, as well as by the administrator in the course of said administration.

But however readily we may concede that there is manifest error in the proceedings and orders of the court under which the land involved in this suit was sold, it cannot be maintained, in the light of the former decisions' of this court, that they can be held to be absolutely void.

The most serious objections urged by appellant against the deed from the administrator, are that the order of court does not show that a petition had been filed asking for a sale of the land; that the administrator waived a “copy of the citation, notice, &c.”; that half of the debt, to satisfy which the land was sold, was not due when the order of sale was made; that the land was not sufficiently described in either the order or confirmation of sale; that the report of sale is too vague and indefinite, and is not sworn to by the administrator. In the case of Finch v.

Edmonson, 9 Tex., 504, it is said, that a petition for the sale of land belonging to an estate was essential to give the court jurisdiction to make such order, under the Probate law of 1846. But the correctness of this proposition seems to have been seriously questioned. It has, beyond doubt, been limited in its application to orders of sale made under that law; and it seems to be now well settled, that a petition is not essential to give the court jurisdiction, under the statute of 1848, to order the sale of land for the payment of debts. (Alexander v.

Maverick, 18 Tex., 179.) But if a petition was necessary, “ the order of sale could not be considered invalid, because the record did not show affirmatively that the petition was not filed. * * * It could not be intended, from the absence of such a paper merely, that it was never filed; but the intendment most rational would be that it was lost after the rendition of the order.” (Id.) And, certainly, the fact of the administrator waiving a copy of the citation, and accepting service, does not indicate any impropriety of conduct on the part of the administrator, much less warrant our saying that the court was on this account without jurisdiction to order the sale.

Nor did the court err in making the order, because á part of the mortgage debt was not then due. (Tinsley v. Boykin, 46 Tex., 592.) The vague and indefinite' manner in which the land is described in the order of sale, report of the administrator, and order of confirmation, presents the most serious objection to the title under administrator’s sale; and if not aided by other parts of the probate record, this ground of objection would probably be fatal. But it appears, from the record, that this tract was the only land the estate owned.

The sale was ordered for payment of the purchase-money, which was secured by “ a mortgage upon the real estate of the said Hurley, deceased.” It is accurately described in the mortgage, to which reference is made in the order. That the description in the order of sale may be aided by the inventory and other matters of record pertaining to the administration, has been heretofore decided by the court. (Davis v. Touchstone, 45 Tex., 490.) The provision of the statute, that the administrator shall swear to the report of sale, is unquestionably a directory, and not a jurisdictional, requirement.

But if essential to the validity of the order of confirmation, it is not shown, by the record, that the administrator did not verify Ms report, as required by the statute. The fact of his affidavit not being indorsed upon the report, does not prove that the oath required was not made. The objection to the sufficiency of appellee’s affidavit as a predicate for the introduction of copies of the mortgage deed from Hurley to Warren, and the deed from Roane, administrator, to Musgrove, were not well taken. The affiants swear that they could not procure the originals.

This is all that the statute requires,of them. (Paschal’s Dig., art. 3716.) The proof of the execution of the deed to Musgrove by Van-sickle, one of the subscribing witnesses, is a substantial, though not a literal, compliance with the statute. This was sufficient to admit it to record. The other assignments of error are not of sufficient moment to require notice. The judgment is affirmed. Aeeirmed.