R. G. Steele et al. v. B. Renn et al., 50 Tex. 467

Moore, Chief Justice. This is an action of trespass to try title, brought by appellees December 12, 1872, for the recovery from appellants of lots three and four in block twenty-three, in the town of Rusk, Cherokee county, to which both parties claim title under Casper Renn, deceased, in whom the title is admitted to have been at his death. Appellees claim as the heirs, and appellants as purchasers in good faith from H. K. Joice and wife, who claimed as devisees of Renn. On the 23d of December, 1864, Casper Renn died in Rusk, Cherokee county, where he had for some years previous resided.

In January, 1865, an instrument purporting to be his last will and testament was presented to the court for probate by the parties therein named as executors; said instrument authorized said executors to administer and settle up the estate in accordance with its terms without being subject to the supervision and control of the court.

After due notice of the application had been given, the execution of the instrument was inquired of by the court, whereupon it was adjudged to- be the last will and testament of said Casper Renn, deceased; and the property and effects belonging to bis estate were committed to said parties named as executors, to be by them administered under and in pursuance of the authority purported to be given them therein.

On the 3d of March, 1865, said executors made and delivered to said Joice and wife a deed for said lots devised to them by said will; and on the 2d of December, 1865, said Joice and wife, in consideration of $275 paid them by Richard G-. Steele, as recited in their deed, sold and conveyed them to said Steele, from whom they were subsequently purchased by appellant Carter. Appellees, who are brothers and sister to Casper Renn, deceased, were at the date of his death, and most of them seem to be still, citizens of Germany; Some time in the summer of 1865 B.

Renn, one of the appellees, came to Rusk, Cherokee county, where he has since resided, to look after the estate of his brother on behalf of his brothers and sister as well as himself; and in November, 1866, prior to the sale of the lots from Steele to Carter, suit was instituted by said B. Renn in the name of the brothers and sister, heirs of said Casper Renn, deceased, to set aside and revoke the probate of said will, charging the same to he a false and spurious instrument, and not in fact the will of said Casper Renn, deceased.

In 1873 it was finally so determined and adjudged by this court, and its probate ordered to be revoked and annulled.

On the trial, the facts here stated having been proved, appellants introduced evidence tending to prove that they purchased the lots in good faith, and claimed to be entitled to the protection of the court as purchasers for value without notice that said instrument was not the true and genuine will of Casper Renn, deceased, as it purported and had been adjudged to be by its probate; whereupon the court instructed the jury, among other things, as follows: “The plaintiffs have produced in evidence a conclusive judgment setting aside the pretended will of Casper Renn; deceased, and declaring it null and void, and that his heirs at his death were invested with the ownership of all of his estate.

When Steele purchased from Joice he took no better title than Joice had, which has been shown to be none at all, and he took the title at his own risk.” If this is a correct view of the law, evidently appellants have no title and have no just cause to complain of the recovery of the lots by appellees. On the other hand, if it is erroneous, as it necessarily controlled the verdict of the jury to the prejudice of appellants, the judgment must be reversed. The practical importance of the question raised by this charge is obvious.

If the views of the court are held to be correct, no title derived from a devisee but may be swept from under the purchaser at any time, however remote, while the probate of the will is subject to attack. This fact when known must cast a cloud on all such titles, lessen their market value, and retard' their transfer. On the other hand, if the instruction does not correctly state the law, our probate system affords but slight safeguards .to non-resident heirs against perjury and fraud.

These considerations induced this court to refrain from a decision of this case for several terms, and to call upon the counsel for a more thorough examination of the law applicable to it than had at first been made by them; but we regret to say that so far they have cited us no case bearing directly upon the point presented, and we have, to a considerable extent, to decide it as an original question. Appellants insist that they are entitled to protection as innocent purchasers notwithstanding the invalidity of the will from which their title springs.

In support of their proposition they refer us to the case of Jones v. Powles, 10 Eng. Ch. Rep., 310; 3 Myl. & K., 581. But this case merely illustrates the rule of equity protecting purchasers in good faith who get in the outstanding legal title, but leaves unsettled the main difficulty, viz.: Although lie may have purchased in good faith, did Steele occupy a better position than Joice and wife would if they had not sold the lots ? Unquestionably their title in such event would have fallen with the revpcation of the probate of the instrument by which they purport to have been devised to them. (Gaines v.

New Orleans, 6 Wall., 642; Gaines v. De La Croix, 6 Wall., 719.) But while our conclusion has not been reached without hesitancy and embarrassment, we think, notwithstanding the damage to which absent and non-residhnt heirs may thereby be exposed, he does, if he in fact purchased in good faith, and that public policy requires this solution of the question. An application for the probate of a will is a proceeding in rem., and the judgment of the court upon it is binding upon. all the world until revoked or set aside. (Hodges v. Bauchman, 8 Yerg., 186; Scott v. Calvit, 3 How., (Miss.,) 158; State of California v.

McGlynn, 20 Cal., 271; 3 Red. on Wills, 63.) How, it has often been held that acts done under authority, by the judgment of a court having jurisdiction of the estate, even where it is being administered under a forged will, are just as valid and effectual as if the will had been genuine; that a payment voluntarily made to the executor named in a forged will is a valid discharge of the debt. Though the will may be afterwards set aside and annulled, the debtor cannot be required to pay the debt a second time.

If the pretended will had required the executors to settle the will of Renn in the Probate Court, the acts done by them in pursuance of the orders of the court carrying into effect provisions of the will could not be impeached or set aside to the injury of innocent parties, because they have a right to rely upon the validity of the judgment of the court. (5 Monr., 42; 11 Cush., 519; 9 Dana, 41; 9 Penn. St., 234; 6 Port., 243; 13 Gratt., 682.) Is there any difference in respect to the powers of the executors where the purported will directs the settlement of the estate out of the court ?

By its judgment the court has declared 1he instrument to be genuine. This judgment is binding upon all the world until reversed or annulled. Must innocent parties, when they act upon the faith of such judgment, do so at the peril of its being subsequently shown to he erroneous ? There is evidently a broad distinction in the position of a party claiming to be an innocent purchaser from one who has merely a forged deed, and that of a like purchaser from the devisee in a forged will.

In the former case the true owner is neither charged with notice of the forged deed, nor is he in any way committed to or estopped from denying its validity; while in the latter the will is adjudged to be valid by a court of competent jurisdiction, in a proceeding to which the heir is a party. While it is in force the heirs are bound by it, and cannot deny its correctness or dispute the validity of the devise.

The purchaser from the devisee is authorized by the judgment to buy from him on the faith of a valid judgment of a court of competent jurisdiction, to which the heirs are parties, by which it has been in effect determined that the estate of the testator vested in the vendor on the testator’s death. The heirs being bound by the judgment, they occupy the position of one who has voluntarily parted with or been divested of his title, and then stands by and sees it sold to a purchaser in good faith without a word of complaint.

That he afterwards asserts his title and has the judgment reversed, or gets a decree cancelling the probate of the will, does not mend the matter. The purchase has been consummated. If by the subsequent reversal of the judgment he can annul the purchaser’s title, he makes an innocent party the victim of his negligence and delay, and all distinction between bona-fide and maXcL-fide purchasers is destroyed. For the error in the charge of the court, the judgment is reversed and the cause remanded. Reversed and remanded. [Justice Bonner did not sit in this case.]