L. D. Bradley v. P. H. Love, 60 Tex. 472

Watts, J. Com. App. In this state probate courts are courts of general jurisdiction in all matters relating to the administration of estates of deceased persons. And their judgments can only be attacked in a collateral proceeding when the record affirmatively shows that the court had no jurisdiction of the subject matter, or that its jurisdiction did not attach in the particular matter attempted to be adjudicated. As was truly said in Murchison v.

White, 54 Tex., 82, “If, however, from the record itself it should affirmatively appear, either that the court did not have jurisdiction of the subject matter, or of the person, in a case where this was also required, or that the jurisdiction had not attached in the particular case, then the question can be raised upon objection to the record when offered in evidence, and no affirmative proceeding need be prosecuted to vacate it.

Being a nullity upon its face, it could not legally be invoked .against those whose just rights were sought to be affected by it.” In this case the orders and judgments of the district court, sitting as a probate court are to have precisely the same force and effect as if made by the probate court. If the county judge is disqualified in any particular estate, then the statute for the purposes of administering that estate constitutes the district court a court of probate for that purpose.

When acting as such, the district court possesses, and may exercise, all the powers conferred upon the county court, but its jurisdiction is precisely the same as that of the county court; no greater, nor no less. It is provided in the constitution that the district court alone has jurisdiction of all suits for the trial of title to land and for the enforcement of liens thereon.

If, then, the proceeding instituted in the probate court had for its object the trial of the title to the land in controversy (and such was the result of the proceeding), and it thus affirmatively appears from the record, then no argument is necessary to establish that the court had no jurisdiction, and the adjudication was a nullity, and subject to collateral attack.

Admitting, then, as claimed by the appellees, that the land was the separate property of their mother, at her death their title, except a life estate of one-third in the father, was a distinct, independent title, vested in them by law, and in no way connected with, or dependent upon, the results of an ad ministration of the father’s estate. So far as that title is concerned, they would occupy the position of strangers to the father’s estate. And the power and jurisdiction of the probate court would be the same as to them as to any other strangers.

While the probate court has the power to require additional inventories, and to make orders with reference to how the property shall be inventoried,— whether as separate or community property,—, in the exercise of these powers it must be remembered that it has no jurisdiction to try and determine title to land. It very clearly appears that the result of the proceeding now under consideration was an attempt upon the part of the probate court to inquire into and determine the title to the land.

For if, a$ claimed by appellant, the land was community property, then it was assets, and subject to administration; while if, as claimed by appellees, it was, in whole, or in part, the separate property of their mother, to that extent it would not be assets, and the probate court, in that administration, could have no power or control over it. Title ■ to such separate property would no more pass by such order than if the lands of any other stranger had been adjudged to belong to the estate, and ordered sold.

In our opinion the proceeding in probate court respecting this land can constitute no barrier to a recovery upon the part of appellees. That is, it is not res adjiidicata as to them upon the question of- title. "Next in order is the question as to whether or not the land was, in whole or in part, the separate property of Mrs. Love.

Upon this point the evidence is not as full as might be desired, but it, in effect, shows that James Dunn, desiring to divide his lands among his four children, called them together, and, after making them equal as to former advancements, he divided his lands into four lots, placed them on separate pieces of paper, and the children drew by lot from a hat. In this Cavett represented his wife and Love his wife. Subsequent to that time Dunn had the deeds prepared by a. practicing attorney.

The deed under consideration was made to “ David Love and his wife, Mary Love,” with the following provision therein: “ To have and to hold the aforesaid lands unto them, the said David Love and Mary Love, their heirs and assigns forever.” This deed purports to be made upon a consideration of $1,000 paid by the grantees. Then, standing alone, and unaided by extrinsic evidence, the legal effect of this deed would be to make the land community property. But this is not the conclusive effect of the convejmnce, except as to innocent third parties whose rights have attached.

Upon this prima facie effect of the deed evidence is admissible to show that it was a gift either to the one or the other, and when that is established the property would no longer be considered as community, but the separate property of those for whom the gift was intended. In other words, the legal effect would be the same as if no valuable consideration had been mentioned, but that the. conveyance purported to be based on love and affection. Here the evidence sufficiently showed that no valuable consideration was paid for the land, but that in fact it was a gift.

And while we might naturally expect that the gift would be made to the daughter, rather than jointly to herself and husband, yet there is no reason for indulging in such presumption against the legal effect of the conveyance. When the fact is established that the conveyance was based upon a good, as distinguished from a valuable, consideration, the legal effect of the conveyance, standing alone and unaided by extrinsic circumstances, would be that it was a' gift jointly to the husband and wife, which would result in each having an undivided half interest in the land as separate property.

As before remarked, from the fact that Dunn was dividing his property among his children, it would be more natural to expect that he would make the gift to the daughter rather than to herself and husband jointly. But under our system title to land can be conveyed to a married woman in her own name as effectually as if it was conveyed to a person laboring under no disability. It appears that after the division James Dunn had this deed prepared by a practicing attorney, who, it is to be presumed, knew the effect of the deed, and gave the grantor full information respecting the same.

Then the presumption would arise that he intended that the conveyance should have its purported effect, when considered with reference to the facts attending its execution. In other words, that he intended it as a joint gift to the husband and wife. That seems to have been the conclusion reached by the court below, passing upon the evidence, and it seems to us that the evidence warranted the conclusion.

"While appellant seeks the protection of an innocent purchaser, the evidence shows that he had notice of the claim of appellees before he purchased the land. lie, however, claims that Book, for the payment of whose claim the land was ordered to be sold, had no notice; and, under the rule announced in Grace v.

Wade, 45 Tex., 522, and other cases, to the effect that a judgment-lien creditor who, without notice, has caused a levy to be made upon land under his judgment, or who has acquired a judgment lien, without notice of an unrecorded deed or other claim, the subject of registration, is not affected by any subsequent notice of the claim, and the purchaser under such judgment occupies, in this respect, the place of the creditor, appellant claims that he ought to be protected. This doctrine is only applicable to such judgment liens and others, recognized as subsisting liens in law.

It would be a most dangerous doctrine if extended and applied to quasi judgments and quasi charges upon land. That doctrine should not be extended to other than the cases embraced in the original rule. In our opinion, it has no application to the case before the court. As to the other errors complained of, it is not necessary to consider them. From the views announced it follows that the judgment ought to be affirmed. Affirmed. [Opinion adopted December 7, 1883.]